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[ { "docid": "12523866", "title": "", "text": "also its president, it is clear that that corporation had for years before this transaction bought, sold and held, and did after-wards buy, sell and hold, large amounts of securities. It had a business existence and was a corporate entity separate and distinct by itself with assets and liabilities of its own apart from those of its sole stockholder. And the fact that it had but one stockholder did not prevent its having such a separate legal status. Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399. As such a corporation, it was in law a legal person whose acts were its own in making the purchase of these securities and when the purchase was made and the shares transferred to it Innisfail was the sole owner of them. The plaintiff had no legal interest thereafter in the property sold. Compare, Klein v. Board of Supervisors, 282 U.S. 19, 51 S.Ct. 15, 75 L.Ed. 140, 73 A.L.R. 679; Burnet v. Clark, 287 U.S. 410, S3 S.Ct. 207, 77 L.Ed. 397; Nixon v. Lucas, 2 Cir., 42 F.2d 833. Where a corporation having but one stockholder does have separate dealings at a loss the sole stockholder may not take a deduction for its loss on his own income return. Dalton v. Bowers, 287 U.S. 404, 53 S.Ct. 205, 77 L.Ed. 389; Menihan v. Commissioner, 2 Cir., 79 F.2d 304. Nor is his holding period to be added to that of such a corporation for the purpose of determining whether a capital asset was sold. Webber v. Knox, 8 Cir., 97 F.2d 921. Perhaps a case as closely in point as any is Jones v. Helvering, 63 App.D.C. 204, 71 F.2d 214, where a loss deduction was allowed on a real sale by a sole stockholder to his corporation. See, also, Commissioner v. Eldridge, 9 Cir., 79 F.2d 629, 102 A. L.R. 500, and Commissioner v. McCreery, 9 Cir., 83 F.2d 817. We had a parallel situation in Foster v. Commissioner, 2 Cir., 96 F.2d 130, in respect to the securities purchased by the closely controlled corporation" } ]

[ { "docid": "6414997", "title": "", "text": "404, 53 S.Ct. 205, 77 L.Ed. 389; Groves v. Commissioner, 4 Cir., 99 F.2d 179. But it has frequently been decided in a variety of circumstances that the technical separateness of the two entities may be disregarded in the assessment of income taxes, especially where the stock is closely held and there is little or no distinction in actuality between the corporation and the holders of its stock. Thus it was held in Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406, that no deductible loss occurs upon a sale by an individual taxpayer to a corporation wholly owned by him. The actuality of the corporation was conceded. It had paid franchise and in come taxes and carried on numerous transactions over a period of years. The court said (308 U.S. at page 476, 60 S.Ct. at page 357, 84 L.Ed. 406) : “But the existence of an actual corporation is only one incident necessary to complete an actual sale to it under the revenue act. Title, we shall assume, passed to Innisfail but the taxpayer retained the control. Through the corporate forms he might manipulate as he chose the exercise of shareholder’s rights in the various corporations, issuers of the securities, and command the disposition of the securities themselves. There is not enough of substance in such a sale finally to determine a loss.” The Commissioner also relies on this decision in the pending case because the court referred with approval to its earlier decision in Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399, in which an active corporation sought a ruling that a sale by it to its sole stockholder could not result in a taxable profit, but the identities of corporation and taxpayer were held distinct for purposes of taxation. In respect to this case the court said (308 U.S. 477, 478, 60 S.Ct. 357, 358, 84 L.Ed. 406): “* * * In the Commonwealth Improvement Company case, the taxpayer, for reasons satisfactory to itself voluntarily had chosen to employ the corporation in its operations. A taxpayer is" }, { "docid": "14331252", "title": "", "text": "70 S.Ct. 280, 94 L.Ed. 251; Howell Turpentine Co. v. Commissioner, 5 Cir., 1947, 162 E.2d 319; United States v. Cummins Distilleries Corporation, 6 Cir., 1948, 166 F.2d 17, 20-21. . Gregory v. Helvering, 1935, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 598. . Chisholm v. Commissioner, 2 Cir., 1935, 79 F.2d 14, 15, 101 A.L.R. 200. . Chisholm v. Commissioner, supra, 79 F.2d at page 15. . New Colonial Ice Co., Inc., v. Helvering, 1934, 292 U.S. 435, 441-442, 54 S.Ct. 788, 78 L.Ed. 1348. See the writer’s opinion in Pacific Magnesium, Inc. v. Westover, D.C.Cal., 1949, 86 F.Supp. 644, affirmed in Pacific Magnesium, Inc., v. Westover, 9 Cir., 1950, 183 F.2d 584. . Higgins v. Smith, 1940, 308 U.S. 473, 477, 60 S.Ct. 355, 358, 84 L.Ed. 406. . Southern Pacific Company v. Lowe, 1918, 247 U.S. 330, 337, 38 S.Ct. 540, 62 L.Ed. 1142. . Burnet v. Commonwealth Improvement Co., 1932, 287 U.S. 415, 419-420, 53 S.Ct. 198, 77 L.Ed. 399; Moline Properties, Inc., v. Commissioner, 1943, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499; Inland Development Co. v. Commissioner, 10 Cir., 1941, 120 F.2d 986. . National Carbide Corp. v. Commissioner, 1949, 336 U.S. 422, 69 S.Ct. 720, 93 L.Ed. 779. . National Carbide Corp. v. Commissioner, supra, 336 U.S. at page 429, 69 S.Ct. at page 730. And see, John L. Denning & Company v. Commissioner, 10 Cir., 1950, 180 F.2d 288, 290-291; Bond v. Commissioner, 1950, 14 T.C. 478, 482-484; Estate of Whitfield v. Commissioner, 1950, 14 T.C. 776, 782-784. . Moline Properties, Inc., v. Commissioner, 1942, 319 U.S. 436, 438-439, 63 S.Ct. 1132, 1134, 87 L.Ed. 1499. In the same case, Mr. Justice Reed, in giving the true meaning of the oft-quoted passages from Higgins v. Smith, 1940, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406, and Gregory v. Helvering, 1935, 293 U.S. 465, 469, 55 S.Ot. 266, 79 L.Ed. 596, states: “In general, in matters relating to the revenue, the corporate form may be disregarded where it is a sham or unreal. In such situations the form" }, { "docid": "11192647", "title": "", "text": "circumstances surrounding the loan transaction. He contends that the lender knew the corporation could not make the payments and intended that Crouch make those payments personally during 1970. In essence, Crouch is urging the court to disregard both the corporate entity and the form in which the transaction was cast. This the trial court refused to do, and we agree with its conclusion. Under the Internal Revenue Code, bright-line choices are available to taxpayers with regard to the form in which to operate businesses. Because taxpayers are permitted to select the form in which they do business, with different forms subject to different tax rules, the choice of entity is generally binding. In addressing a taxpayer’s argument that the corporate form be ignored the Supreme Court stated: “The doctrine of corporate entity fills a useful purpose in business life. Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creator’s personal or undisclosed convenience, so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. New Colonial Co. v. Helvering, 292 U.S. 435, 442 [54 S.Ct. 788, 791, 78 L.Ed. 1348]; Deputy v. du Pont, 308 U.S. 488, 494 [60 S.Ct. 363, 366, 84 L.Ed. 416]. In Burnet v. Commonwealth Improvement Co., 287 U.S. 415 [53 S.Ct. 198, 77 L.Ed. 399] this Court appraised the relation between a corporation and its sole stockholder and held taxable to the corporation a profit on a sale to its stockholder. This was because the taxpayer had adopted the corporate form for purposes of his own. The choice of the advantages of incorporation to do business, it was held, required the acceptance of the tax disadvantages.” Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 438-39, 63 S.Ct. 1132, 1133-34, 87 L.Ed. 1499 (1943) (footnotes omitted). Courts have consistently interpreted Moline Properties to preclude ignoring the corporate form when adoption of that form has served" }, { "docid": "11192648", "title": "", "text": "so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. New Colonial Co. v. Helvering, 292 U.S. 435, 442 [54 S.Ct. 788, 791, 78 L.Ed. 1348]; Deputy v. du Pont, 308 U.S. 488, 494 [60 S.Ct. 363, 366, 84 L.Ed. 416]. In Burnet v. Commonwealth Improvement Co., 287 U.S. 415 [53 S.Ct. 198, 77 L.Ed. 399] this Court appraised the relation between a corporation and its sole stockholder and held taxable to the corporation a profit on a sale to its stockholder. This was because the taxpayer had adopted the corporate form for purposes of his own. The choice of the advantages of incorporation to do business, it was held, required the acceptance of the tax disadvantages.” Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 438-39, 63 S.Ct. 1132, 1133-34, 87 L.Ed. 1499 (1943) (footnotes omitted). Courts have consistently interpreted Moline Properties to preclude ignoring the corporate form when adoption of that form has served a business purpose. See, e.g., Lane v. United States, 535 F.Supp. 397 (S.D.Miss. 1981); George Sarkisian, 43 T.C.M. (CCH) 1074 (1982); Robert M. Modeer, 43 T.C.M. (CCH) 782 (1982). Incorporation for the sole purpose of avoiding state usury laws has been held to be a business purpose. William B. Strong, 66 T.C. 12 (1976), aff’d mem., 553 F.2d 94 (2d Cir. 1977); accord Collins v. United States, 386 F.Supp. 17, 21 (S.D.Ga.1974), aff’d per curiam, 514 F.2d 1282 (5th Cir. 1975); David F. Bolger, 59 T.C. 760, 766 (1973). Crouch urges that we disregard the form in which the loan transaction was cast to permit him to receive the tax benefit of interest paid. We may not do so. The Supreme Court, in Commissioner v. National Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 94 S.Ct. 2129, 40 L.Ed.2d 717 (1974), said: “This Court has observed repeatedly that, while a taxpayer is free to organize his affairs as he chooses, nevertheless, once having done so, he must accept the tax consequences of his choice, whether" }, { "docid": "20018410", "title": "", "text": "New Colonial Co. v. Helvering, supra, 292 U. S. 442, 54 S. Ct. 791, 78 L. Ed. 1348, note 5; Burnet v. Commonwealth Imp. Co., supra, 287 U. S. 419, 420, 53 S. Ct. 199, 77 L. Ed 399. * * * In general, in matters relating to the revenue, the corporate form may be disregarded where it is a sham or unreal. In such situations the form is a bald and mischievous fiction. Higgins v. Smith, 308 U. S. 473, 477, 478, 60 S. Ct. 355, 357, 358, 84 L. Ed. 406; Gregory v. Helvering, 293 U. S. 465, 55 S. Ct. 266, 79 L. Ed. 596, 97 A. L. R. 1355. In considering the decision of the Supreme Court in the Moline Properties case, the Court of Appeals for the Second Circuit in National Investors Corporation v. Hoey, 144 F. 2d 466, said: In that case the question was whether the corporation might insist upon the Treasury’s including capital gains within the gross income of its sole shareholder, and the court decided that it might not. That was the same situation as existed in Burnet v. Commonwealth Improvement Co., supra, 287 U. S. 415, 53 S. Ct. 198, 77 L. Ed. 399. The gloss then put upon Higgins v. Smith, supra, was deliberate and is authoritative: it was that, whatever the purpose of organizing the corporation, “so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity.” 319 U. S. 439, 63 S. Ct. 1134, 87 L. Ed. 1499. That, as we understand it, is the same interpretation which was placed upon corporate reorganizations in Gregory v. Helvering, 293 U. S. 465, 55 S. Ct. 266, 79 L. Ed. 596, 97 A. L. R. 1355, and which has sometimes been understood to contradict the doctrine that the motive to avoid taxation is never, as such, relevant. In fact it does not trench upon that doctrine; it merely declares that to be a separate jural person for purposes of taxation," }, { "docid": "10411950", "title": "", "text": "a basic principle of tax law, as declared in Burnet v. Commonwealth Improvement Co., supra, is that a corporation and its sole shareholder are to be treated as distinct entities. See Archibald R. Watson, 42 B. T. A. 52. Upon this rule we now have engrafted the doctrine of Higgins v. Smith, supra, that, where a natural person or a corporation has created or acquired control of another distinct tax entity, it may not avail itself of the legal separateness of personality of its creature from itself to save itself from the incidence of taxation. The Supreme Court said in that case: The taxpayer cites Burnet v. Commonwealth Co. [287 U. S. 415] as a precedent for treating the taxpayer and his solely owned corporation as separate entities. In that case the corporation sold stock to the sole stockholder, the estate of P. A. B. Widener. The transaction showed a hook profit and the corporation sought a ruling that a sale to its sole stockholder could not result in a taxable profit. This Court concluded otherwise and held the identity of corporation and taxpayer distinct for purposes of taxation. In the Commonwealth Improvement Co. case, the taxpayer, for reasons satisfactory to itself voluntarily had chosen to employ the corporation in its operations. A taxpayer is free to adopt such organization for his affairs as he may choose and having elected to do some business as a corporation, he must accept the tax disadvantages. On the other hand, the Government may not be required to acquiesce in the taxpayer’s election of that form for doing business which is most advantageous to him. The Government may look at actualities and upon determination that the form employed for doing business or carrying out the challenged tax event is unreal or a sham may sustain or disregard the effect of the fiction as best serves the purposes of the tax statute. To hold otherwise would permit the schemes of taxpayers to supersede legislation in the determination of the time and manner of taxation. It is command of income and its benefits which marks the" }, { "docid": "11999898", "title": "", "text": "because, under Nebraska law, there was some legal impediment to their retention by the Omaha Public Power District. It is apparent, however, that it was considered unlawful for the Omaha Public Power District to own and operate the Iowa properties formerly owned by the Nebraska Power Company. The Electric Committee and the Omaha Public Power District chose to place the ownership of those properties in Western Iowa Power Company, a private corporation, and to have it retain and operate them until they were disposed of. Having made that choice, the Power District is not, we think, in a position to claim that prior to May 14, 1949, the properties of Western Iowa Power Company were “publicly owned” and that that private corporation was exempt from the electrical energy taxes which it had paid. In Moline Properties, Inc., v. Commissioner of Internal Revenue, 319 U.S. 436, 438-439, 63 S.Ct. 1132, 1134, 87 L.Ed 1499, the Supreme Court said: “The doctrine of corporate entity fills a useful purpose in business life. Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creator’s personal or undisclosed convenience, so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. New Colonial [Ice] Co. v. Helvering, 292 U.S. 435, 442, 54 S.Ct. 788, 791, 78 L.Ed. 1348; Deputy v. Du Pont, 308 U.S. 488, 494, 60 S.Ct. 363, 366, 84 L.Ed. 416. In Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399, this Court appraised the relation between a corporation and its sole stockholder and held taxable to the corporation a profit on a sale to its stockholder. This was because the taxpayer had adopted the corporate form for purposes of his own. The choice of the advantages of incorporation to do business, it was held, required the acceptance of the tax disadvantages.” The appellants place much reliance upon the" }, { "docid": "23189976", "title": "", "text": "the effect of the fiction as best serves the purposes of the tax statute. * * * it is command of income and its benefits which marks the real owner of property.” [308 U.S. 473, 60 S.Ct. 358, 84 L.Ed. 406.] This language we later interpreted as meaning that “the Treasury may take a taxpayer at his word, so to say; when that serves its purpose, it may treat the corporation as a separate person from himself; but that is a rule which works only in the Treasury’s own favor; it cannot be used to deplete the revenue.” United States v. Morris & Essex R. Co., 2 Cir., 135 F.2d 711, 713. Again we were wrong; we neglected to observe that the corporate “form” must be “unreal or a sham,” before the Treasury may disregard it; we had taken too literally the concluding language that it was the “command of income and its benefits which marks the real owner of property.” This error was made plain in the third decision of the Supreme Court — Moline Properties, Inc. v. Commissioner, supra, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499. In that case the question was whether the corporation might insist upon the Treasury’s including capital gains within the gross income of its sole shareholder, and the court decided that it might not. That was the same situation as existed in Burnet v. Commonwealth Improvement Co., supra, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399. The gloss then put upon Higgins v. Smith, supra, was deliberate and is authoritative: it was that, whatever the purpose of organizing the corporation, “so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity.” 319 U.S. 439, 63 S.Ct. 1134, 87 L.Ed. 1499. That, as we understand it, is the same interpretation which was placed upon corporate reorganizations in Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355, and which has sometimes been understood to contradict the doctrine" }, { "docid": "6155647", "title": "", "text": "been told with reference to the distinction taxwise between a wholly owned corporation and its owner that, “Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creator’s personal or undisclosed convenience, so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity.” Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 1134, 87 L.Ed. 1499. We do not think these corporations were within the class thus described. The only disclosed reason for their organization and for their being kept in existence until they were dissolved was to make it unnecessary for the petitioner. to procure from time to time his wife’s signature to some papers. It was not shown how many such signatures would have been needed or that they could not readily have been obtained for the asking. If the petitioner had any other reason for the creation or the existence of his corporations he failed to state it when given the opportunity at the hearing in the Tax Court, and it is now fair to assume that he had none. That slight approach to a. business purpose did not amount to business activity which would make Burnet v. Commonwealth Imp. Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399 a pertinent authority here. On the contrary it is but a straw which, being alone, emphasizes the unsubstantial business aspect of the corporate-set-up the petitioner relies upon. Granted' that no thought' of its effect upon taxation prompted his selection of the way he chose to deal in, or invest in, real estate, he was-no more entitled to take advantage of such a ready made situation when the corporations were dissolved than he would have: been had he created them with possible tax consequences in mind. So this case is not thusly to be distinguished from Higgins v. Smith, supra, and the later decisions in which" }, { "docid": "6414998", "title": "", "text": "Innisfail but the taxpayer retained the control. Through the corporate forms he might manipulate as he chose the exercise of shareholder’s rights in the various corporations, issuers of the securities, and command the disposition of the securities themselves. There is not enough of substance in such a sale finally to determine a loss.” The Commissioner also relies on this decision in the pending case because the court referred with approval to its earlier decision in Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399, in which an active corporation sought a ruling that a sale by it to its sole stockholder could not result in a taxable profit, but the identities of corporation and taxpayer were held distinct for purposes of taxation. In respect to this case the court said (308 U.S. 477, 478, 60 S.Ct. 357, 358, 84 L.Ed. 406): “* * * In the Commonwealth Improvement Company case, the taxpayer, for reasons satisfactory to itself voluntarily had chosen to employ the corporation in its operations. A taxpayer is free to adopt such organization for his affairs as he may choose and having elected to do some business as a corporation, he must accept the tax disadvantages. Cf. Edwards v. Chile Copper Co., 270 U.S. 452, 456, 46 S.Ct. 345, 346, 70 L.Ed. 678. “On the other hand, the Government may not be required to acquiesce in the taxpayer’s election of that form for doing business which is most advantageous to him. The Government may look at actualities and upon determination that the form employed for doing business or carrying out the challenged tax event is unreal or a sham may sustain or disregard the effect of the fiction as best serves the purposes of the tax statute. To hold otherwise would permit the schemes of taxpayers to supersede legislation in the determination of the time and manner of taxation. It is command of income and its benefits which marks the real owner of property. Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731; Corliss v. Bowers, 281 U.S. 376, 50" }, { "docid": "13108155", "title": "", "text": "or over the affairs of the Gardner Homestead. The record contains ample evidence to support this finding. Corporate entity is no more sacrosanct in the field of taxation than in other fields of the law. Higgins v. Smith, 1940, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406; Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; See The Corporate Entity in Tax Cases, 1 Tax Law Review 3 (1945). But disregard of corporate entity is still the exception to the rule. National Carbide Corp. v. Com’r, 1949, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779; Interstate Transit Lines v. Com’r, 1943, 319 U.S. 590, 63 S.Ct. 1279, 87 L.Ed. 1607; Moline Properties v. Com’r, 1943, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499; Paymer v. Commissioner of Internal Revenue, 2 Cir., 1945, 150 F.2d 334; National Investors Corporation v. Hocy, 2 Cir., 1944, 144 F.2d 466; see A. B. & Container Corporation, 14 TC 842 (1950); Alprosa Watch Corporation, 11 TC 240 (1948). The separate entity of even one man corporations has been recognized. In Burnet v. Commonwealth Imp. Co., 1932, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399, it was held that a sale to a sole stockholder resulted in taxable profit to the corporation. See also Klein v. Board of Supervisors, 1930, 282 U.S. 19, 51 S.Ct. 15, 75 L.Ed. 140; Burnet v. Clark, 1932, 287 U.S. 410, 53 S.Ct. 207, 77 L.Ed. 397. Also assets received on the liquidation of a one man corporation have been held to be taxable income to the sole stockholder. France Co. v. Commissioner of Internal Revenue, 6 Cir., 1937, 88 F.2d 917. Again, losses sustained by a corporation have been held not properly reported and claimed in the individual tax return of its sole shareholder. Dalton v. Bowers, 1932, 287 U.S. 404, 53 S.Ct. 205, 77 L.Ed 389; Menihan v. Commissioner of Internal Revenue, 2 Cir., 1935, 79 F.2d 304. In Webber v. Knox, 8 Cir., 1938, 97 F.2d 921, the court refused to allow a tacking of the periods of possession of" }, { "docid": "23189975", "title": "", "text": "rule held good in a case where the Commissioner had refused to allow a deduction to the sole shareholder of losses sustained in transactions between him and his corporation. In this we were in error, however, for the Supreme Court held that, although the Treasury might insist upon the separate personality of the corporation when it chose, it might also disregard it, when it chose. It explained Burnet v. Commonwealth Improvement Co., supra, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399, by saying that “a taxpayer is free to adopt such organization of his affairs as he may choose and having elected to do some business as a corporation, he must accept the tax disadvantages. “On the other hand, the Government may not be required to acquiesce in the taxpayer’s election, of that form for doing business which is most advantageous to him. The Government may look at actualities and upon determination that the form employed of doing business or carrying out the tax event is unreal or a sham may sustain or disregard the effect of the fiction as best serves the purposes of the tax statute. * * * it is command of income and its benefits which marks the real owner of property.” [308 U.S. 473, 60 S.Ct. 358, 84 L.Ed. 406.] This language we later interpreted as meaning that “the Treasury may take a taxpayer at his word, so to say; when that serves its purpose, it may treat the corporation as a separate person from himself; but that is a rule which works only in the Treasury’s own favor; it cannot be used to deplete the revenue.” United States v. Morris & Essex R. Co., 2 Cir., 135 F.2d 711, 713. Again we were wrong; we neglected to observe that the corporate “form” must be “unreal or a sham,” before the Treasury may disregard it; we had taken too literally the concluding language that it was the “command of income and its benefits which marks the real owner of property.” This error was made plain in the third decision of the Supreme Court —" }, { "docid": "17011284", "title": "", "text": "financing and managing business enterprises. His own tax returns show that his principal occupation was that of attorney. Holtz v. Commissioner, supra; Koch v. United States, 9 Cir., 1958, 264 F.2d 334, 337. The chief complaint of the taxpayer on this point is that the Tax Court should have disregarded the corporate status of Eagle Timber. The taxpayer argues that since he was the owner of the corporation, we should entirely disregard the corporation and adopt his contentions. As a general rule, a corporation is to be treated as an entity separate from the individuals who own it. Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 419, 53 S.Ct. 198, 77 L.Ed. 399; Dalton v. Bowers, 287 U.S. 404, 410, 53 S.Ct. 205, 77 L.Ed. 389. An exception is recognized and the corporate structure may be disregarded where (1) the purpose of its creation was not a business purpose, and (2) the creation was not followed by any business activity. Paymer v. Commissioner, 2 Cir., 1945, 150 F.2d 334. On the other hand, where the corporation is created for a business activity or the creation is followed by business activity, the corporation must be recognized as a separate entity. National Carbide Corporation v. Commissioner, 336 U.S. 422, 428-429, 69 S.Ct. 726, 93 L.Ed. 779; Skarda v. Commissioner, supra; Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 439, 63 S.Ct. 1132, 87 L.Ed. 1499. The last mentioned principles apply to the facts in this case. Skarda v. Commissioner, supra; L. T. Campbell, Inc. v. Commissioner, 5 Cir., 1947, 159 F.2d 629; Paymer v. Commissioner, supra. The failure of the corporation to comply with certain of the statutory requirements of the corporation laws of the state of Washington is not controlling. There was a substantial compliance with the requirements of the Washington statutes, but even if there was a failure in this respect, Eagle Timber must be recognized as a corporation de facto. Henry v. Markesan State Bank, 8 Cir., 1934, 68 F.2d 554, 558; Skarda v. Commissioner, supra. The taxpayer signed formal legal documents as an officer of the corporation. The" }, { "docid": "11152979", "title": "", "text": "court. It follows that the Commissioner was right in his determination. Judgment will, therefore, be for the Defendant that the plaintiff take nothing by the Complaint. . 26 U.S.C.A. § 3772. . 26 U.S.C.A. § 22(a). . 26 U.S.C.A. § 22(b) (3). Regulation 111, Sec. 29.22(2)-13. . Klein v. Board of Tax Supervisors, 1930, 282 U.S. 19, 24, 51 S.Ct. 15, 75 L.Ed. 140, 73 A.L.R. 679; New Colonial Co. v. Helvering, 1934, 292 U.S. 435, 442, 54 S.Ct. 788, 78 L.Ed. 1348; Burnet v. Commonwealth Improvement Co., 1932, 287 U.S. 415, 419-420, 53 S.Ct. 198, 77 L.Ed. 399; see, National Carbide Corp. v. Commissioner, 1949, 336 U.S. 422, 428-429, 69 S.Ct. 726. “A taxpayer is free to adopt such organization for his affairs as he may choose and having elected to do some business as a corporation, he must accept the tax disadvantages. “On the other hand, the Government may not be required to acquiesce in the taxpayer’s election of that form for doing business which is most advantageous to him. The Government may look at actualities and upon determination that the form employed for doing business or carrying out the challenged tax event is unreal or a sham may sustain or disregard the effect of the fiction as best serves the purposes of the tax , statute. To hold otherwise would permit the schemes of taxpayers to supersede legislation in the determination of the time and manner of taxation. It is command of income and its benefits which marks the real owner of property.” Higgins v. Smith, 1940, 308 U.S. 473, 477-478, 60 S.Ct. 355, 358, 84 L.Ed. 406. . Moline Properties v. Commissioner, 1943, 319 U.S. 436, 438-439, 63 S.Ct. 1132, 1134, 87 L.Ed. 499. “The decisive question is whether the corporations were created to, or did, in fact, serve a recognizable business purpose.” O’Neill v. Commissioner, 2 Cir., 1948, 170 F.2d 596, 598. “If the corporate device -is used for business advantages, there is no just ground for protests when it results in tax liability.” Railway Express Agency v. Commissioner, 2 Cir., 1948, 169 F.2d 193," }, { "docid": "23189977", "title": "", "text": "Moline Properties, Inc. v. Commissioner, supra, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499. In that case the question was whether the corporation might insist upon the Treasury’s including capital gains within the gross income of its sole shareholder, and the court decided that it might not. That was the same situation as existed in Burnet v. Commonwealth Improvement Co., supra, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399. The gloss then put upon Higgins v. Smith, supra, was deliberate and is authoritative: it was that, whatever the purpose of organizing the corporation, “so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity.” 319 U.S. 439, 63 S.Ct. 1134, 87 L.Ed. 1499. That, as we understand it, is the same interpretation which was placed upon corporate reorganizations in Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355, and which has sometimes been understood to contradict the doctrine that the motive to avoid taxation is never, as such, relevant. In fact it does not trench upon that doctrine ; it merely declares that to be a separate jural person for purposes of taxation, a corporation must engage in some industrial, commercial, or other activity besides avoiding taxation: in other words, that the term “corporation” will be interpreted to mean a corporation which does some “business” in the ordinary meaning; and that escaping taxation is not “business” in the ordinary meaning. If the law be so understood, it seems to us that the plaintiff at bar has not proved that it was entitled to the deduction. Although the Investors Fund was a mere shell until December 17, 1934, when it was used as a means of putting through the consolidation of the four other companies under the “Plan,” that was a “business” activity, in the sense that we have just defined that word. So was holding the transferred securities, while the “Plan” was being considered by the shareholders. However, although the stipulation declares that" }, { "docid": "3356309", "title": "", "text": "could not be separately and additionally taxed with respect to their several shares even when divided, since if there were entire identity between them and the company they could not be regarded as receiving anything from it, any more than if one’s money were to be removed from one pocket to another.” In Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 419, 53 S.Ct. 198, 199, 77 L.Ed. 399, in holding that the corporate entity could not be disregarded at the instance of the taxpayer, the Court pointed out, quoting the Board of Tax Appeals, “ ‘The fact is that petitioner [corporate taxpayer] did have a separate legal existence with privileges and obligations entirely separate from those of its stockholders.’ ” It appears clear that the corporate entity created by state law is the corporation taxed under the Internal Revenue Code. Against another attempt by a taxpayer to have the corporate entity disregarded for federal tax purposes, the Supreme Court held in Moline Properties, Inc. v. Commissioner of Internal Revenue, 319 U.S. 436, 438-439, 63 S.Ct. 1132, 1134, 87 L.Ed. 1499: “The doctrine of corporate entity fills a useful purpose in business life. Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid or to comply with the demands of creditors or to serve the creator’s personal or undisclosed convenience, so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a separate taxable entity. New Colonial [Ice] Co. v. Hel-vering, 292 U.S. 435, 442 [54 S.Ct. 788, 78 L.Ed. 1348]; Deputy v. du Pont, 308 U.S. 488, 494 [60 S.Ct. 363, 84 L.Ed. 416].” In the same case the Court enumerated situations in which the corporate entity will be disregarded. 319 U.S. at 439, 63 S.Ct. 1132. In Knoxville Truck Sales & Service, Inc. v. Commissioner of Internal Revenue, 10 T.C. 616, acq. C.B. 1948-2 3, accord, S.R. 1123, C.B. III-2 4 (1924), the taxpayer corporation had been issued a charter by the State of" }, { "docid": "23189974", "title": "", "text": "disclosed, we should recognize transactions of sale or exchange between a corporation and its sole shareholder; and our decision turns upon three decisions of the Supreme Court: Burnet v. Commonwealth Improvement Company, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406, and Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499. In the first of these the question was whether it was proper to tax a corporation for profits upon transactions between itself and a decedent’s estate which owned all its shares. The court merely declared that, since a corporation was for most purposes recognized as a separate jural person, and since the situation was not one of the exceptions where the “corporate form” should be “disregarded,” it should be taxed upon its gains, regardless of the fact that no living person had gained or lost a cent. When Higgins v. Smith, supra, was before us (Smith v. Higgins, 2 Cir., 102 F.2d 456) we assumed that this rule held good in a case where the Commissioner had refused to allow a deduction to the sole shareholder of losses sustained in transactions between him and his corporation. In this we were in error, however, for the Supreme Court held that, although the Treasury might insist upon the separate personality of the corporation when it chose, it might also disregard it, when it chose. It explained Burnet v. Commonwealth Improvement Co., supra, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399, by saying that “a taxpayer is free to adopt such organization of his affairs as he may choose and having elected to do some business as a corporation, he must accept the tax disadvantages. “On the other hand, the Government may not be required to acquiesce in the taxpayer’s election, of that form for doing business which is most advantageous to him. The Government may look at actualities and upon determination that the form employed of doing business or carrying out the tax event is unreal or a sham may sustain or disregard" }, { "docid": "23189973", "title": "", "text": "two of the twenty shares of that company in exchange for one-tenth of the assets it had transferred on December 17, 1934. The value of the transferred assets had on that day fallen to $2,361,681.30; but it limited itself in 1935 to the realization of only one-tenth of its loss, because it wished to realize in that year only so much as it could use to set off its gains from other sources. In January, 1936, it surrendered the other eighteen shares for the remaining assets of the Investors Fund, and thus completed the liquidation of that company. The issue is whether the plaintiff should be allowed as a deduction from its 1935 income the difference between the value, on December 17, 1934 — $466,023.34—of one-tenth of the shares transferred to Investors Fund and the value on December 21, 1935 — $236,168.-13. The Commissioner refused to allow the deduction and the plaintiff paid to the defendant’s testator the tax imposed upon its income, as so computed. This result depends upon whether, in the situation just disclosed, we should recognize transactions of sale or exchange between a corporation and its sole shareholder; and our decision turns upon three decisions of the Supreme Court: Burnet v. Commonwealth Improvement Company, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406, and Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499. In the first of these the question was whether it was proper to tax a corporation for profits upon transactions between itself and a decedent’s estate which owned all its shares. The court merely declared that, since a corporation was for most purposes recognized as a separate jural person, and since the situation was not one of the exceptions where the “corporate form” should be “disregarded,” it should be taxed upon its gains, regardless of the fact that no living person had gained or lost a cent. When Higgins v. Smith, supra, was before us (Smith v. Higgins, 2 Cir., 102 F.2d 456) we assumed that this" }, { "docid": "23263737", "title": "", "text": "them. The net income so reported was treated as the net income of the partners in their returns. The petitioners now contend that Raymep and Westrich were mere “dummies” which held the legal title to property owned by the two individual petitioners and that both corporations are to be disregarded for income tax purposes. As a general rule a corporation is a taxpayer separate and distinct from its stockholders. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442, 54 S.Ct. 788, 78 L.Ed. 1348. And this applies to a corporation wholly owned by one stockholder. Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399. But there are exceptions and the corporate form will be disregarded where it serves no business purpose and is but a sham. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355. So, too, a taxpayer may gain the advantage of doing his own business through a wholly owned corporation if he pleases, but the treasury may disregard the separate corporate entity where it serves but as a shield against taxation and treat the one who actually may take the benefit of the income as the owner of the property which produces it and tax him accordingly. Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406. Yet the treasury may treat a corporation as a separate taxable entity when its organization “is followed by the carrying on of business by the corporation.” Moline Properties v. Commissioner of Internal Revenue, 319 U.S. 436, 439, 63 S.Ct. 1132, 1134, 87 L.Ed. 1499. We think that Raymep was active enough to justify holding that it did engage in business in 1938. The absence of books, records and offices and the failure to hold corporate meetings are not decisive on that question. Though Raymep was organized solely to deter creditors of one of the partners, it apparently was impossible or impracticable to use it solely for that purpose when it became necessary or desirable to secure the above mentioned loan in a substantial amount. There was," }, { "docid": "21480824", "title": "", "text": "60 S.Ct. 357. In a long discussion the court, inter alia, states that “Indeed this domination and control is so obvious in a wholly owned corporation as to require a peremptory instruction that no loss in the statutory sense could occur upon a sale by a taxpayer to such an entity.” 60 S.Ct. 357. That the phrase “wholly owned” in this dictum regarding an instruction to the jury means something more than mere stock ownership is to be inferred from a ruling at the end of the opinion. There certain evidence of past transactions between taxpayer and corporation was admissible because the court thought “it apparent that this evidence was entirely relevant to the present issue; the history of the taxpayer’s relations with the corporation shed considerable light on the actual effect of the sale in question.” 60 S.Ct. 359. Later, considering Burnet v. Commonwealth Improvement Company, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399, in which the sole stockholder so utilized the corporation that it made a book profit and the corporation was held liable as a separate taxable entity, the court says: “ * * * a taxpayer is free to adopt such organization for his affairs as he may choose and having elected to do some business as a corporation, he must accept the tax disadvantages. “On the other hand, the Government may not be required to acquiesce in the taxpayer’s election of that form for doing business which is most advantageous to him. The Government may look at actualities and upon determination that the form employed for doing business or carrying out the challenged tax event is unreal or a sham may sustain or disregard the effect of the fiction as best serves the purposes of the tax statute. To hold otherwise would permit the schemes of taxpayers to supersede legislation in the determination of the time and manner .of taxation. It is command of income and its benefits which marks the real owner of property.” (Emphasis supplied.) Higgins v. Smith, supra, 60 S.Ct. 358. It is arguable that the Higgins decision means that no" } ]

[ { "docid": "6878741", "title": "", "text": "distinction between legal and equitable relief. Even more importantly, Fine herself created the endpoint for Ryan's responsibility when she took the new job. It makes no sense to make Ryan her employer of last resort for life, if it bears no responsibility for the actions of later employers. Both because of the stipulation and for the latter reason, we agree with the district court's decision to deny reinstatement. Fine next disputes the district court's decision to reduce her attorneys' fees by ten percent off the lodestar amount. The court did this because some of the claimed hours were spent on the unsuccessful discrimination claim, and it did not wish to reward Fine for her unsuccessful claims. This decision too is reviewed only for abuse of discretion. Dun ning, 62 F.3d at 872. Where several claims are presented and the plaintiff prevails on less than all, the court must decide how related the claims were to one another. Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This is a classic question of degree. Where the plaintiff achieves only partial or limited success, the court may at its discretion make a percentage reduction. Bryant v. City of Chicago, 200 F.3d 1092, 1101-02 (7th Cir.2000). Here, in an important sense Fine was fully successful, not partially successful: she received all the monetary relief she could have gotten, even if she had won on every theory. Nevertheless, the district court only reduced the award by ten percent, and this action may have reflected its view that counsel wasted time pursuing less promising theories of liability. Because our review is only for abuse of discretion, and we find none in that decision, we will not disturb the district court’s judgment on this point. Compare Merriweather v. Family Dollar Stores of Ind., Inc., 103 F.3d 576, 584 (7th Cir.1996) (affirming 90% of lodestar award where plaintiff lost discrimination claim but prevailed on retaliation count). Finally, Fine points out that the district court erred in calculating prejudgment interest by computing interest only through June 30, 2000, even though it did not" } ]

[ { "docid": "14149081", "title": "", "text": "Sch. Dist., 298 F.3d 731, 734 (8th Cir.2002). “A litigant is a ‘prevailing party’ if he obtains ‘actual relief on the merits of his claim that materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’ ” Id. (quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)) (alterations omitted). The School District argues that the district court erred in determining that the Clarks were the prevailing parties and abused its discretion by awarding attorneys’ fees that were not reasonable in light of the Clarks’ limited success. The School District further asserts that even if this court affirms the conclusion that it did not provide Robert with a free appropriate public education, the fees and costs must be reduced. We respectfully disagree. Even though the Clarks began the process seeking relief such as a private placement or an inclusive placement within the district, the record demonstrates that the only issue in dispute at the administrative hearing was whether the attachments to the IEPs satisfied the requirement of providing Robert with a proper behavior management plan. The Clarks prevailed on this issue. There is no assertion that the School District offered a behavior management plan by way of settlement, aside from the vague propositions already contained in the IEPs. When the administrative panel ordered the School District to consult an expert and devise a proper behavior management plan, it altered the legal relationship between the parties by granting Robert a legal right previously denied him by the School District’s failure to devise and implement a behavior management plan. This amounts to actual relief on the merits of Robert’s IDEA claim, and thus the district court properly determined that the Clarks were the prevailing parties and correctly granted an award of attorneys’ fees. We review the award of attorneys’ fees for an abuse of discretion. Birmingham, 298 F.3d at 734. The district court awarded only 40% of the amount of attorneys’ fees that the Clarks sought. According to the district court, this reduction properly reflected that" }, { "docid": "11744289", "title": "", "text": "the lodestar is required” because Plaintiff “prevailed on only one of his two claims, at best a 50% success rate.” (Resp. at 10.) Defendant’s argument for a reduction is two-fold. First, Defendant states that Smith and Jones’ billing statements fail to delineate between the “time or work between the two claims.” (Id.) Thus, Defendant argues that Plaintiff has not satisfied his burden under Hensley of “ ‘maintaining] billing time records in a manner that will enable a reviewing court to identify distinct claims.’ ” (Id., quoting Hensley, 461 U.S. at 437, 103 S.Ct. 1933.) Because Plaintiff “has failed to satisfy his burden under Hensley,” Defendant contends that the court “should decline to award fees to [] Plaintiffs counsel.” (Id. at 11.) Second, Defendant states that, “[s]hould the Court be inclined to award attorney’s fee[s] despite [ ] Plaintiffs failure to satisfy his record-keeping burden, the court should ... substantially reduce the lodestar amount given the limited success achieved by [] Plaintiff.” (Resp. at 11.) In response, Plaintiff argues that his two claims were so inextricably intertwined that it was impossible to allocate time spent among the two claims. For the following reasons, the court disagrees with Defendant that the lodestar should be reduced. The lodestar figure represents a presumptively reasonable fee. See Dague, 505 U.S. at 562, 112 S.Ct. 2638. The court, however, may adjust the lodestar, if necessary, to reflect a plaintiffs overall degree of success, making the award “reasonable in relation to the results obtained.” Hensley, 461 U.S. at 440, 103 S.Ct. 1933. Thus, “where the plaintiff prevails on only some of his claims, ... special considerations come into play.” Popham v. City of Kennesaw, 820 F.2d 1570,1578 (11th Cir.1987). After calculating the lodestar figure, “the court can then reduce the lodestar to reflect the plaintiffs partial success:” Id. “If the claims on which the plaintiff did not prevail and the claims on which he did prevail were ‘distinctly different claims ... based on different facts and legal theories,’ the court cannot award any fee for services on the unsuccessful claims.” Id. (quoting-Hensley, 461 U.S. at 434-35, 103" }, { "docid": "16626417", "title": "", "text": "and “the societal importance of the right which has been vindicated.” Coutin, 124 F.3d at 338. Each meaning requires brief discussion. 1. Claim-by-Claim Success “If a plaintiff prevails on only some of multiple claims, then a fee reduction may be in order.” Coutin, 124 F.3d at 339. In contrast, where plaintiffs have “prevailed up and down the line” on their claims, “a claims-based, results-obtained fee reduction is wholly inappropriate.” Rodriguez-Hernandez, 132 F.3d at 859 (quoting Coutin, 124 F.3d at 340). A reduction on these grounds is also inappropriate where “unsuccessful claims were based on a common core of facts and related legal theories.” Id.; cf. McMillan, 140 F.3d 288, 1998 WL 110164, at *18-*19 (questioning the relationship of a 20% cut to the number of hours expended by counsel on unsuccessful claims because “the court in this case provided no elaboration for the reduction”). 2. Relief Actually Achieved The second meaning is critical to this case. “Sometimes, the plaintiff will prevail on all her claims, but will receive limited (though not insubstantial) redress.” Coutin, 124 F.3d at 339. “[I]t remains within the district court’s discretion to reduce a fee award in response to limited relief even in the presence of complete claims-based success.” Id. at 340. “Hensley makes clear that where multiple claims are interrelated and a plaintiff has achieved only limited success, awarding her the entire lodestar amount would ordinarily be excessive.” Andrade, 82 F.3d at 1191 (citing Hensley, 461 U.S. at 436, 103 S.Ct. 1933). “[A] fee reduction in response to a scanty damage award or a shortfall in other relief entails a subjective evaluation of damages awarded and nonmon-etary relief obtained, and is substantially more difficult to quantify.” Coutin, 124 F.3d at 338. 3. Societal Importance of the Right Vindicated The third meaning attached to the term “results obtained” refers more broadly to the impact of the case on others similarly situated. Attorney fees should be awarded in a way consistent with “the recognized principle that even small damage awards may mean a substantial victory for ‘a policy that Congress considered of the highest importance.’ ” Lewis" }, { "docid": "2229905", "title": "", "text": "a fee may be reduced merely because the fee would be disproportionate to the financial interest at stake in the litigation.”). The Court also does not find that Plaintiffs counsel is entitled to full compensation for the litigation.of this matter based on Plaintiffs argument, that he obtained “excellent results.” Pb’s Reply Br. at 1. In G.B. ex rel. N.B., defendants sought a reduction in plaintiffs’ attorneys’ fees on the ground that the plaintiffs achieved only partial success. 894 F.Supp.2d at 426. The court first explained that defendants failed to understand that the court’s equitable reduction of plaintiffs recovery did not reflect on the merits of the plaintiffs claims. Id..iThe court then declined to reduce the plaintiffs’ attorneys fees because the plaintiffs had “obtained excellent results, as they prevailed on the merits' of each claim they brought before the Court and were awarded tuition reimbursement for fourteen of the seventeen months for which they sought reimbursement.” Id. (citing Hensley, 461 U.S. at 435, 103 S.Ct. 1933) (internal quotation marks omitted). In the instant matter, Plaintiff Elting may have achieved excellent results on his false arrest and excessive' force claims, but he cannot be considered to have achieved excellent results in the context of this entire litigation, which • included one claim on which Elting did not prevail, and three claims on which his co-plaintiff, Dancy, did hot prevail. The Court is also not convinced by Plaintiffs argument that Plaintiffs’ counsel should be fully compensated for this litiga tion because the proper inquiry is “not whether plaintiff has succeeded on every motion or every claim, but whether such action by the attorney was reasonably undertaken.” Pl.’s Reply Br. at 1. The cases that Plaintiff cited, Gierlinger and Marisol are distinguishable from this instant matter. In Marisol, the Court declined to reduce plaintiffs’ attorneys’ fees to account for plaintiffs’ unsuccessful motion to dismiss the defendants’ interlocutory appeal of the district court’s decision to grant class certification. Marisol A. ex rel. Forbes v. Giuliani, 111 F.Supp.2d 381, 393 (S.D.N.Y.2000). The court in Marisol found that plaintiffs’ counsels’ efforts, although unsuccessful, were reasonable especially in" }, { "docid": "21532802", "title": "", "text": "relationship between the amount of the fee awarded and the results obtained, fees for fed litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation.”). As such, the Court will consider the Plaintiffs relative degree of success in litigating fees when considering the size of the fees on' fees award. Id. Where a prevailing party has achieved only partial success, this Court has discretion to exercise its equitable judgment to “identify specific hours that should be eliminated, or,... simply reduce the award to account for the limited success.” Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933. .In the instant case, this Court awarded Plaintiff 75% of its fee request for fees incurred in the underlying administrafive proceeding. See Briggs, 73 F.Supp.3d at 64, 2014 WL 5860358, at *4. Thus, Plaintiff has achieved only partial success in this fees litigation. This limited success is not consistent with the “excellent results” that would justify this Court awarding Plaintiff “a fully compensatory fee.” Hensley, 461 U.S. at 435, 103 S.Ct. 1933. Accordingly, because Plaintiff only received 75% of its requested fees in the underlying administrative action, this Court exercises its discretion to award 75% of the reasonable fees on fees that Plaintiff seeks in the present motion. See id. at 436; see also Hirsch v. Compton Unified Sch. Dist., No. CV 12-01269, 2013 WL 1898553, at *6 (C.D.Cal. May 3, 2013) (reducing ■a prevailing plaintiffs fees on fees award based on the percentage of fees the plaintiff recovered in the underlying IDEA fees litigation) (citing Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 909 (9th Cir.1995) (“[A] district court does not abuse its discretion by applying the .same percentage of merits fees ultimately recovered to determine the proper amount of the fees-on-fees award.”)). D. The Plaintiff Should Be Awarded Fees of $6,256.13 and Costs of $467.55 Applying the above formula, Ms. Jester’s fee for legal work pertaining to this fees-on-fees action comes to $6,256.13, and Plaintiff will recover an additional $467.55 in costs. Thus, the total amount of Plaintiffs fees on fees award" }, { "docid": "23581439", "title": "", "text": "it in establishing the reasonable rate ... to derive the ‘lodestar’ figure.” Lucero, 815 F.2d at 1385. The court reduced the hours billed by 80.35 hours for duplicative attorney work, 20 hours for unproductive travel time, and 25 hours for time spent on claims dismissed by the pretrial summary judgment. Defendants contend that the court did not sufficiently reduce the billable hours calculated for the award because Plaintiff “lost on 80% of her claims.” Appellants’ Opening Br. at 34. Defendants’ reliance on Daniel v. Loveridge, 32 F.3d 1472 (10th Cir.1994), to support their argument is misplaced. The defendants in Daniel argued that the plaintiff should receive only one-sixth of her requested attorney’s fees because she lost five out of six claims. We affirmed the award of 60% of the plaintiffs fees because the district court found plaintiff prevailed on the “central portion” of her claim. Id. at 1478. Notably, the district court in Daniel awarded the plaintiff 60% of her requested fees even though she lost on four of five claims that proceeded to trial. Id. In this case, the record reflects that Plaintiff not only prevailed on the central portion of her claim, but she succeeded on the only claim that proceeded to trial. Moreover, the Title VII sexual harassment claim was Plaintiffs principal claim from the outset. Hensley held that “the extent of a plaintiffs success is a crucial factor in determining the proper amount of an award of attorney’s fees.” Hensley, 461 U.S. at 440, 103 S.Ct. at 1942. Hensley further stated that “[w]here a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised.” Id. The critical issue, therefore, is whether the claims dismissed on summary judgment were “related claims” within the meaning of Hensley or “distinct in all respects” from the Title VII claim. See id.; see also Jane L. v. Bangerter, 61 F.3d 1505, 1512 (10th Cir.1995) (holding plaintiffs successful due process claim precludes reduction of the lodestar amount on the basis of related," }, { "docid": "20457344", "title": "", "text": "court determined that there was a justiciable dispute before the Texas hearing officer because EPISD had not offered an enforceable settlement. Specifically, the district court concluded that EPISD’s settlement offer would not have been enforceable in either state or federal court, and as such, R.R. had an interest in continuing litigation to obtain a judicial order that could be enforced against EPISD. The district court then held that R.R. had prevailed in the litigation by obtaining a judicial order entitling him to all of his requested relief. Because the district court determined that R.R.’s litigation was not frivolous, the court also dismissed EPISD’s attorney’s fee claim. Following this prevailing party determination, R.R. moved for attorney’s fees. In response, EPISD again argued that because R.R. had achieved nothing more than was originally offered, the district court should not award attorney’s fees to R.R. The district court disregarded EP-ISD’s contentions, stating that it had considered those arguments in making its prevailing party determination. Instead, the district court granted R.R.’s motion for attorney’s fees in August 2008 and awarded $45,804 in fees to R.R. — an award that reflected the full amount of work R.R.’s attorney had done. EPISD now appeals the district court’s prevailing party and attorney’s fee decisions. II. DISCUSSION The IDEA requires that a party be a “prevailing party” in order to be entitled to attorney’s fees. See 20 U.S.C. § 1415(i)(3)(B)(i) (“[T]he court, in its discretion, may award reasonable attorneys’ fees ... to a prevailing party .... ”). Thus, in an action for attorney’s fees under the IDEA, the threshold question is whether the party seeking attorney’s fees is the prevailing party. See Jason D.W. ex rel. Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir.1998) (per curiam). However, “[a] finding that a party is a prevailing party only makes him eligible to receive attorneys’ fees under the IDEA; it does not automatically entitle him to recover the full amount that he spent on legal representation.” Id. A. Prevailing Party Status Under the IDEA, “a prevailing party is one that attains a remedy that both" }, { "docid": "20457345", "title": "", "text": "awarded $45,804 in fees to R.R. — an award that reflected the full amount of work R.R.’s attorney had done. EPISD now appeals the district court’s prevailing party and attorney’s fee decisions. II. DISCUSSION The IDEA requires that a party be a “prevailing party” in order to be entitled to attorney’s fees. See 20 U.S.C. § 1415(i)(3)(B)(i) (“[T]he court, in its discretion, may award reasonable attorneys’ fees ... to a prevailing party .... ”). Thus, in an action for attorney’s fees under the IDEA, the threshold question is whether the party seeking attorney’s fees is the prevailing party. See Jason D.W. ex rel. Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir.1998) (per curiam). However, “[a] finding that a party is a prevailing party only makes him eligible to receive attorneys’ fees under the IDEA; it does not automatically entitle him to recover the full amount that he spent on legal representation.” Id. A. Prevailing Party Status Under the IDEA, “a prevailing party is one that attains a remedy that both (1) alters the legal relationship between the school district and the handicapped child and (2) fosters the purposes of the IDEA.” Jason D.W., 158 F.3d at 209. This test follows from Texas State Teachers Association v. Garland Independent School District, where the Court held that the “touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (“[P]laintiffs may be considered ‘prevailing parties’ ... if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”). More recently, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, the Supreme Court clarified that a prevailing party is one that has obtained a judgment on the merits, a consent decree, or some similar form of" }, { "docid": "2229897", "title": "", "text": "F.Supp. 1056, 1060 (S.D.N.Y. 1992) (citations omitted). Courts may reduce the fee award requested in some circumstances, such as when plaintiffs submit deficient or incomplete billing records, see Hensley, 461 U.S. at 437 n. 12, 103 S.Ct. 1933, or in order to exclude “excessive, redundant, or otherwise unnecessary hours.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir.1999). 1. Reductions Based on Partial Success Defendant contend that “it is unconscionable for counsel’s fees to nearly equal the recovery actually awarded- to the client.” Def.’s Opp. Br. at 8: Defendant argues that this Circuit “recognizes that the degree of success obtained by the plaintiff is the most important factor in determining the appropriate fee award.” Id. Defendant also argues that Elting only succeeded on two claims out of a total of six claims which were litigated in this matter, and therefore should have his attorneys fees reduced accordingly. Id, at 1. Elting contends that the six claims were inextricably intertwined, and the Court should therefore not reduce the award of attorneys’ fees to Elting based on the unsuccessful claims. PL’s Mem. L. at 3-6. Elting further argues that his attorneys should recover a fully compensatory fee because he obtained “excellent results.”\" PL’s Reply Br. at 1 (citing G.B. ex rel. N.B., 894 F.Supp.2d at 425). Elting contends that the proper inquiry is “not whether plaintiff has succeeded on evéry motion or every claim, but whether such action by the attorney was reasonably undertaken.” Id. (citing Gierlinger v. Gleason, 160 F.3d 858, 880 (2d Cir.1998); Marisol A. ex rel. Forbes v. Giuliani, 111 F Supp.2d 381, 393 (S.D.N.Y.2000)). The Second Circuit has “clearly adopted the view ... that a district judge’s authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiffs ‘partial or limited success’ is not restricted either to cases of multiple, discrete theories or to cases in which the plaintiff won only a nominal or technical victory.” Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d Cir. 2005), Where a plaintiffs lawsuit was based on a common nucleus of" }, { "docid": "6699654", "title": "", "text": "minimis award.” On the issue of attorney’s fees, the Board held that ALJ Barnett erred in failing to apply the Supreme Court’s holding in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), requiring that an attorney’s fee award be commensurate with the degree of success obtained in the case. The Board concluded that although ALJ Barnett cited Hensley, she “did not apply its holding in awarding an attorney’s fee in excess of $71,000.” The Board therefore vacated that award and remanded and reassigned the case to ALJ Chapman with directions to adjust the fee award “after taking into account the limited results obtained in this case, specifically that only medical benefits, but no disability benefits, were awarded.” Twenty months later, in October, 1998, ALJ Chapman found that the number of hours reflected in the fee petition was reasonable, but reduced the hourly rates by one-third for lack of evidentiary justification that they were the prevailing rates for similar legal work in the area. She further reduced the lodestar figure by two-thirds in accordance with her conclusion that the award of future medical benefits represented “no more than one-third of the relief requested.” Upon Motion for Reconsideration submitting evidence that the rates awarded by ALJ Barnett were the prevailing rates for attorneys with comparable experience, and challenging the reduction in the degree of success to one-third, ALJ Chapman denied that Motion but changed the rationale for her reduction in the rates. She concluded that (a) the rates were nonetheless unreasonable because the amount of time charged by counsel to this matter strongly suggested to ALJ Chapman that counsel lacked expertise and (b) because ALJ Barnett’s “refusal to grant a de minimis award indicate[d] that she did not view the possibility of future economic harm ... to be significant enough to overcome the Board’s disfavor of such awards”, counsel had achieved a relatively small portion of the relief requested. On January 28, 2000 the Board affirmed ALJ Chapman’s fee reductions, holding that Petitioner failed to show any abuse of discretion and that Petitioner’s “primary claim for compensation”" }, { "docid": "16626416", "title": "", "text": "937 (citing Blum, 465 U.S. at 897, 104 S.Ct. 1541). The Court may exercise its “authority to adjust the lodestar” only “in accordance with accepted principles.” Coutin, 124 F.3d at 337 (citing Hensley, 461 U.S. at 429-31, 103 S.Ct. 1933). A “preeminent consideration in the fee-adjust ment process” is the “results obtained” by the plaintiffs. Coutin, 124 F.3d at 338 (citing Hensley, 461 U.S. at 432 & 440); see also Rodriguez-Hernandez, 132 F.3d at 859 (“In a civil rights lawsuit, ‘[t]he result is what matters_’”). In adjusting the lodestar, a court “ ‘may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.’ ” Andrade, 82 F.3d at 1191 (quoting Hensley, 461 U.S. at 436) The guiding principle, nonetheless, is that “a court should award only that amount of fees that is reasonable in relation to the results obtained.” Id. The First Circuit considers, in combination, three “meanings” of the term “results obtained:” “a plaintiffs success claim by claim,” “the relief actually achieved,” and “the societal importance of the right which has been vindicated.” Coutin, 124 F.3d at 338. Each meaning requires brief discussion. 1. Claim-by-Claim Success “If a plaintiff prevails on only some of multiple claims, then a fee reduction may be in order.” Coutin, 124 F.3d at 339. In contrast, where plaintiffs have “prevailed up and down the line” on their claims, “a claims-based, results-obtained fee reduction is wholly inappropriate.” Rodriguez-Hernandez, 132 F.3d at 859 (quoting Coutin, 124 F.3d at 340). A reduction on these grounds is also inappropriate where “unsuccessful claims were based on a common core of facts and related legal theories.” Id.; cf. McMillan, 140 F.3d 288, 1998 WL 110164, at *18-*19 (questioning the relationship of a 20% cut to the number of hours expended by counsel on unsuccessful claims because “the court in this case provided no elaboration for the reduction”). 2. Relief Actually Achieved The second meaning is critical to this case. “Sometimes, the plaintiff will prevail on all her claims, but will receive limited (though not insubstantial) redress.” Coutin, 124" }, { "docid": "17140673", "title": "", "text": "case, the district court granted judgment as a matter of law in favor of Wal- Mart on Barton’s negligent retention and constructive discharge claims. On January 26, 1999, the jury found in favor of Wal-Mart on Barton’s retaliation claim, found in favor of Barton on her sexual harassment claim against Wal-Mart, and awarded her $25,000. On January 27, 1999, the district court entered a judgment on the verdict. The district court subsequently denied Wal-Mart’s motions for judgment as a matter of law, for a new trial, and for remittitur. On March 12, 1999, Barton requested an award of $137,098.81 in attorney’s fees and $12,466.53 in costs. According to Barton, the request included a reduction in actual time based on lack of success on her other claims. On April 30, 1999, the district court awarded Barton $106,832.60 in attorney’s fees and $9,385.22 in costs, for a total of $116,217.82, plus interest. In making its award, the district court reduced hourly rates for paralegals and law clerks, subtracted hours' spent in duplicative work, eliminated certain costs, and reduced the total fee award by twenty percent for lack of success. See slip op. at 3-5. This appeal followed. Discussion We review a district court’s award of attorney’s fees and costs under Title VII for abuse of discretion. See 42 U.S.C. § 2000e-5(k) (a district court, “in its discretion, may allow the prevailing party ... a reasonable attorney’s fee (including expert fees) as part of the costs”); Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 358 (8th Cir.1997) (“We will tamper with a district court’s award of attorney fees only if there has been an abuse of discretion.”). Where a plaintiff has achieved only limited or partial success, the court must consider in its award “whether the expenditure of counsel’s time was reasonable in relation to the success achieved.” Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (Hensley). Wal-Mart initially argues that the district court’s award of attorney’s fees should be substantially reduced based on Barton’s limited degree of success. WalMart notes that assessment" }, { "docid": "3852191", "title": "", "text": "461 U.S. at 435, 438-4, 103 S.Ct. 1933); see also, e.g., id. (“Hensley makes clear that where multiple claims are interrelated and a plaintiff has achieved only limited success, awarding her the entire lodestar amount would ordinarily be excessive.” (citing Hensley, 461 U.S. at 436, 103 S.Ct. 1933)). The First Circuit considers, in combination, three “meanings” of the term “results obtained”: “a plaintiffs success claim by claim,” “the relief actually achieved,” and “the societal importance of the right which has been vindicated.” Coutin, 124 F.3d at 338. The Court briefly discusses each meaning and then applies them, together, to this case. A. Clainv-by-Claim Success .This approach focuses on the number of substantive causes of action on which a plaintiff prevailed. See id. at 340. “If a plaintiff prevails .on only some of multiple claims, then a fee reduction may be in order.” Id. at 339. In contrast, when plaintiffs have “prevailed up and down the line” on their claims, “a claims-based, results-obtained fee reduction is wholly inappropriate.” Id. at 340; see also Rodriguez-Hemandez, 132 F.3d at 859 (citing Coutin). In making this determination, the trial court considers all of the related claims — that is, claims based “on a common core, of facts and on related legal theories” — both successful and unsuccess ful. Id. (citing Hensley, 461 U.S. at 435, 103 S.Ct. 1933); see also Coutin, 124 F.3d at 339 (outlining an approach that first weeds out unsuccessful, unrelated claims as not compensable and then proceeds to analyze the degree of success on the interrelated claims). B. Relief Actually Achieved The second meaning of “results obtained” focuses on the damages awarded to the plaintiff. See id. at 340. The trial court has the “discretion to reduce a fee award in response to limited relief even in the presence of complete claims-based success.” Id. (citing Cartwright v. Stamper, 7 F.3d 106, 109-10 (7th Cir.1993)). However, a plaintiff “should receive significant fees when he has won a partial victory on a civil rights claim while receiving substantially the relief he there sought_” Aubin v. Fudala, 782 F.2d 287, 291 (1st Cir.1986);" }, { "docid": "21384736", "title": "", "text": "103 S.Ct. at 1941; see also Naekel v. Department of Transp., FAA, 884 F.2d 1378, 1379 (Fed.Cir.1989) (finding that appellant’s fee award should not be reduced notwithstanding that appellant had prevailed on only four of six issues on appeal). Finally, the Supreme Court held: that the extent of a plaintiffs success is a crucial factor in determining the proper amount of an award of attorney’s fees.... Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the ... court did not adopt each contention raised. But where the plaintiff achieved only limited success, the ... court should award only that amount of fees that is reasonable in relation to the results obtained. Hensley, 461 U.S. at 440, 103 S.Ct. at 1943 (emphasis added). A Reduction of Fees Due to Limited Success Here, the parties dispute whether the appellant’s hours should be reduced based on the degree of success he actually achieved. In the Secretary’s view, the appellant should receive a reduction in hours by one-third to reflect the Court’s affirmance of the BVA’s decision on one of the three claims, the tinnitus claim. The appellant, in turn, argued that he actually had received substantial benefit from the Court’s treatment of his tinnitus claim, notwithstanding the affirmance of the BVA’s denial of it, in light of the Court’s statement “that our holding that the BVA did not commit legal error in refusing to award a 1972 effective date or a 20% rating for tinnitus should not be construed as having any bearing upon the substantive merits of these issues.” Smith, supra. Given that the appellant remained free to pursue aspects of his tinnitus claim before the agency of original jurisdiction (AOJ), even after the Court’s action, the appellant argued further that his position before this Court on the tinnitus claim" }, { "docid": "385953", "title": "", "text": "omitted). Although plaintiffs received only nominal damages, their victory was not merely technical. Plaintiffs obtained an injunction that benefitted all of the students in the school district, and the free speech right vindicated was not readily reducible to a sum of money. We hold that the district court did not err in finding that plaintiffs’ victory was more than merely technical. Defendants also argue that because plaintiffs prevailed on only one of the four counts in their complaint, the district court should have awarded 25% of fees instead of 50%. The district court awarded $37,500 in attorneys’ fees, which is approximately one-half of the total fees incurred. Defendants’ contention that the district court was required to calculate the award based on a percentage of counts in the complaint on which plaintiffs’ received damages lacks precedential support. Instead, our case law has rejected a similar, arithmetically simplistic fee-calculation argument. See Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 772 (8th Cir.2000) (rejecting the argument that because Barton only prevailed on one of her six original claims, her fee award of 70% was too high). In fact, “[t]here is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment.” Hensley v. Eckerhart, 461 U.S. 424, 436-37, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The Supreme Court has established: [C]ertain principles to guide the discretion of the lower courts in setting fee awards in cases where plaintiffs have not achieved complete success. Where the plaintiffs claims are based on different facts and legal theories, and the plaintiff has prevailed on only some of those claims, we indicated that [t]he congressional intent to limit [fee] awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim. In the more typical situation, where the plaintiffs claims arise out" }, { "docid": "385952", "title": "", "text": "awarded as compared to the amount sought”) (quoting Riverside v. Rivera, 477 U.S. 561, 585, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986)). In Farrar, private damages were the purpose of the litigation, and of the $17 million requested in that case, the plaintiff received only nominal damages and no injunctive or declaratory relief. Id. at 107-08, 113 S.Ct. 566. Here, in contrast, the purpose of the litigation was not private damages. The Supreme Court has stated that: Because damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on obtaining substantial monetary relief. Rather, Congress made clear that it intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases and not be reduced because the rights involved may be non-pecuniary in nature. Riverside, 477 U.S. at 575, 106 S.Ct. 2686 (internal citations and quotations omitted). Although plaintiffs received only nominal damages, their victory was not merely technical. Plaintiffs obtained an injunction that benefitted all of the students in the school district, and the free speech right vindicated was not readily reducible to a sum of money. We hold that the district court did not err in finding that plaintiffs’ victory was more than merely technical. Defendants also argue that because plaintiffs prevailed on only one of the four counts in their complaint, the district court should have awarded 25% of fees instead of 50%. The district court awarded $37,500 in attorneys’ fees, which is approximately one-half of the total fees incurred. Defendants’ contention that the district court was required to calculate the award based on a percentage of counts in the complaint on which plaintiffs’ received damages lacks precedential support. Instead, our case law has rejected a similar, arithmetically simplistic fee-calculation argument. See Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 772 (8th Cir.2000) (rejecting the argument that because Barton only prevailed on one of her six original claims," }, { "docid": "3852190", "title": "", "text": "Court may exercise its “authority to adjust the lodestar” only “in accordance with accepted principles.” Coutin, 124 F.3d at 337 (citing Hensley, 461 U.S. at 429-31, 103 S.Ct. 1933). As the City points out, a “preeminent consideration in the fee-adjustment process” is the “results obtained” by the plaintiffs. Id. at 338 (citing Hensley, 461 U.S. at 432, 440, 103 S.Ct. 1933); see also, e.g., Rodriguez-Hernandez, 132 F.3d at 859 (“In a civil rights lawsuit, ‘[t]he result is what matters’.... ” (alteration in original) (quoting Hensley, 461 U.S. at 435,103 ,S.Ct. 1933)). In adjusting the lodestar for the results obtained, a court “ ‘may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.’ ” Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1191 (1st Cir.1996) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). The guiding principle, nonetheless, is that a court “should award only that amount of fees that is reasonable in relation to the results obtained” at trial. Id. (citing Hensley, 461 U.S. at 435, 438-4, 103 S.Ct. 1933); see also, e.g., id. (“Hensley makes clear that where multiple claims are interrelated and a plaintiff has achieved only limited success, awarding her the entire lodestar amount would ordinarily be excessive.” (citing Hensley, 461 U.S. at 436, 103 S.Ct. 1933)). The First Circuit considers, in combination, three “meanings” of the term “results obtained”: “a plaintiffs success claim by claim,” “the relief actually achieved,” and “the societal importance of the right which has been vindicated.” Coutin, 124 F.3d at 338. The Court briefly discusses each meaning and then applies them, together, to this case. A. Clainv-by-Claim Success .This approach focuses on the number of substantive causes of action on which a plaintiff prevailed. See id. at 340. “If a plaintiff prevails .on only some of multiple claims, then a fee reduction may be in order.” Id. at 339. In contrast, when plaintiffs have “prevailed up and down the line” on their claims, “a claims-based, results-obtained fee reduction is wholly inappropriate.” Id. at 340; see also Rodriguez-Hemandez, 132 F.3d" }, { "docid": "14363448", "title": "", "text": "attorneys’ fees despite changes to IEP ordered by hearing officer)); R.L. v. Plainville Bd. of Educ., 363 F.Supp.2d 222, 238-39 (D.Conn.2005) (awarding no fees where, even though hearing officer instructed school to amend IEP “to incorporate the specific amount of hours of special education services and mainstream services currently provided her and to incorporate audiological services,” the school “prevailed on every substantive question submitted for decision”); Linda T. v. Rice Lake Area Sch. Dist., 337 F.Supp.2d 1135, 1144 (W.D.Wis.2004) (awarding zero fees to parents who won on their “secondary” concern that their son’s IEP needed revisions, but lost on their “primary” concern that he be placed in a private school). Other courts, however, have not been as constricted when addressing prevailing party status. For example, in Mrs. M. v. Tri-Valley Cent. Sch. Dist., 363 F.Supp.2d 566 (S.D.N.Y.2002), the court determined that the plaintiffs degree of success, while “not great,” was “not de minimis.” Id. at 573. As a result, the court deemed it appropriate to cut the fee request by fifty percent, observing that “[t]he single most significant factor to be considered ... is the degree of success obtained.” Id. at 572 (citing G.M. by and Through R.F. v. New Britain Bd. of Educ., 173 F.3d 77, 81 (2d Cir.1999)). Similarly, in A.S. v. Colts Neck Bd. of Educ., 190 Fed.Appx. 140, 143, 2006 WL 1795134, at *3 (3d Cir. June 30, 2006), the Third Circuit affirmed a district court’s reduction of the plaintiffs’ fee request by eighty percent where they prevailed on only three of their four issues. This court believes that the latter approach — reducing the requested fees by a substantial percentage based on only limited success — to be appropriate here. Cf. Hensley, 461 U.S. at 430, 103 S.Ct. 1933 (noting that the degree to which a plaintiff succeeds is a relevant consideration). As described, Plaintiffs have prevailed in some small, non de minimis, measure. Having considered all that Plaintiffs sought, however, the court concludes that they are entitled to no more than one-eighth (12.5%) of their fees based on their having prevailed, at most, on" }, { "docid": "8364746", "title": "", "text": "nominal damages in any amount is a prevailing party because the legal relationship between the parties has changed. The Tenth Circuit in Hall distinguished its facts from those in Farrar v. Hobby, 506 U.S. at 115, 113 S.Ct. at 575 where the Court held a plaintiff who is awarded only nominal damages, although the prevailing party, would not be entitled to an award of attorney fees. In Hall, the jury had awarded the plaintiff $41,793.00 on his breach of contract claim, but, having been instructed not to award “duplicative” damages, awarded plaintiff zero on the his ADEA claim, although it found he had prevailed on both claims. The appeals court found an award of attorney fees under ADEA was proper. The Tenth Circuit further rejected the argument that, since Hall was awarded zero damages on the ADEA claim, the attorney fees should have been reduced, if not disallowed, and held the district court had not abused its discretion in determining the appropriate fee. Dalai also refers to Bruno v. Western Electric Co., 618 F.Supp. 398, 401-04 (D.Colo.1985) where the plaintiff sought to recover attorney fees under § 626(b) of the ADEA, 29 U.S.C. § 216. Citing Hensley v. Eckerhart, 461 U.S. at 435-36, 103 S.Ct. at 1940-41, the court assessed whether Bruno had achieved excellent results, meriting a fully compensatory fee encompassing all hours reasonably spent on litigation, or whether he had achieved only limited success, in which case such fee might be excessive. The court rejected Western’s argument that the attorney fee award should be reduced because Bruno did not recover all of the damages he sought, noting the mandate in Ramos v. Lamm, that “[t]he amount of monetary recovery is not as significant as the policy being vindicated,” 713 F.2d 546, 557 (10th Cir.1983), and that in Hensley, “the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit,” 461 U.S. at 435, 103 S.Ct. at 1940. Bruno, 618 F.Supp. at 402. Dalal also cites Caruso v. Peat, Marwick, Mitchell & Co., 779 F.Supp. 332, 335 (S.D.N.Y.1991), holding" }, { "docid": "1498128", "title": "", "text": "11, 106 S.Ct. 2686, 2697-98 n. 11, 91 L.Ed.2d 466 (defendant “ ‘cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.’ ” (quoting Copeland v. Marshall (D.C.Cir.1980) 641 F.2d 880, 904)). Having considered the other four challenged categories, and bearing in mind that the case involved a trial lasting only two days, we conclude that the hours expended should be reduced by 25% to ensure that the award includes only those hours reasonably expended. See, e.g., DiFilippo v. Morizio (2d Cir.1985) 759 F.2d 231, 236 (29 hours spent on post-trial memorandum after one day trial excessive as a matter of law); cf. Carey, supra, 711 F.2d at 1146 (approving percentage cuts as a practical means of “trimming fat” from a fee application). Defendant contends that a further reduction in the fee award is warranted because plaintiff did not prevail against defendant Pineau. Thus, he asserts, the award should reflect only those hours expended in pursuing relief against defendant Weber. We disagree. Our consideration of this contention necessarily begins with Hensley v. Eckerhart (1983) 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40, in which the Court held that “the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees.” Id. at 440, 103 S.Ct. at 1943. The Court qualified that holding as follows: Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. Id. In our view, the claims asserted against Pineau were inextricably interrelated with those asserted against Weber. They arose from the same common core of facts, i.e. the defendants’ conduct at the time of plaintiff’s arrest, and were based on the same legal theories. Moreover, in light" } ]

[ { "docid": "23276925", "title": "", "text": "been open to serious dispute, although defendants might in a technical sense have been regarded as aiders and abettors. Such is the necessary and adjudged effect of section 332 of the Penal Code: “Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” 35 Stat. pt. 1, p. 1152 (Comp. St. § 10506). See Wood v. United States, 204 Fed. 55, 58, 122 C. C. A. 369 (C. C. A. 4); Dean v. United States, 246 Fed. 568, 574, 158 C. C. A. 538 (C. C. A. 5); Rooney v. United States, 203 Fed. 928, 931, 932, 122 C. C. A. 230 (C. C. A. 9); and see Ruthenberg v. United States, 245 U. S. 480, 483, 38 Sup. Ct. 168, 62 L. Ed. 414. 4And where the statute, as here, has abrogated the distinction prevailing at the common law between principals and accessories in the commission of felonies, a charge against one formerly known as an accessory is good against him as principal. Rosencranz v. United States, 155 Fed. 38, 43, 83 C. C. A. 634 (C. C. A. 9). So, where persons were formerly chargeable as aiders and abettors, they may be indicted and prosecuted as principals, whether the principal offender has been indicted and acquitted (Rooney v. United States, supra), or has not been indicted at all (Wood v. United States, 204 Fed. supra, at page 58, 122 C. C. A. 369). This results, too, from the rule prevailing in some jurisdictions that under such modifying statutes the act of aiding and abetting is a substantive offense. Goins v. State, 46 Ohio St. 457, 462, 21 N. E. 476. . It must follow from the foregoing considerations that the first, fifth, sixth, and ninth counts, as well as the others before passed upon, of indictment 800, are legally sufficient. 2. Consolidation of the Two Indictments, One for Conspiracy and, the Other for Substantive Fraud, Permissible. — It is insisted that defendants were deprived of a fair trial by" } ]

[ { "docid": "5984436", "title": "", "text": "for thirty years that a defendant may be convicted of aiding the commission of a felony under 18 U.S.C. § 2 even though the alleged principal has been acquitted, see United States v. Klass, 166 F.2d 373, 380 (3d Cir. 1948), I believe that our position has not properly reflected congressional intent. Common law distinguished between felonies and misdemeanors for the purpose of accomplice liability. See W. LaFave & A. Scott, Criminal Law 496 (1972). The criminal responsibility of an accessory to a non-capital felony was purely derivative, that is, conviction or outlawry of the principal was an absolute prerequisite to conviction of the accessory. If the principal was unknown, at large, or pardoned prior to trial, the accessory could not be punished. Needless to say, acquittal of the principal precluded conviction of the accessory. See generally id. at 495-501. Where the substantive offense was a misdemeanor, however, all participants, including accessories before the fact, were considered principals in the offense and could be tried, convicted, and punished without regard to the disposition of charges against other parties. See id. at 496. Under federal law, of course, there are no common law crimes. The federal courts have jurisdiction only over actions specifically proscribed by Congress. United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812). Thus, in the nineteenth century, a person could be convicted in federal court of aiding and abetting a particu lar felony only if Congress had defined aiding and abetting that felony as a crime. See, e. g., United States v. Crane, 25 Fed. Cas. p. 691, No. 14,888 (C.C.D.Ohio 1847). Congress, employing a variety of formulations, scattered a number of specific accessory provisions throughout the statutes of the period. See, e. g., Act of March 3, 1825, ch. 64, § 45, 4 Stat. 114 (buying stolen mail); R.S. § 5323 (1878) (piracy); R.S. § 5427 (1878) (naturalization offenses); R.S. § 5466 (1878) (destroying mail). Where a federal statute made the substantive offense a misdemeanor, however, no specific statutory authorization was necessary to prosecute an accomplice. See United States v. Mills, 32 U.S." }, { "docid": "22796237", "title": "", "text": "an aider and abettor notwithstanding the prior acquittal of the perpetrator of the offense. See United States v. Klass, 166 F. 2d 373, 380 (CA3 1948); Von Patzoll v. United States, 163 F. 2d 216, 219 (CA10 1947); Kelly v. United States, 258 F. 392, 402 (CA6 1919); Rooney v. United States, 203 F. 928, 931-932 (CA9 1913). Congress manifested no intent to disturb this interpretation. See Lorillard v. Pons, 434 U. S. 575, 580 (1978). Petitioner emphasizes the fact that the Committee Report fails to mention the common-law rule that the prior acquittal of a principal barred conviction of an accessory, and argues accordingly that Congress did not view that rule as an “obstacle to justice.” The Court of Appeals correctly rejected this argument, being unwilling to “apply the canon of statutory interpretation . . . expressio unius, exchisio alterius ... to the language employed in a committee report.” 610 F. 2d 1076, 1084 (CA3 1979) (emphasis added). We agree. Petitioner’s argument would permit an omission in the legislative history to nullify the plain meaning of a statute. The language of § 2 abolishes the common-law categories and treats all parties as principals. It is not necessary for Congress in its committee reports to identify all of the “weeds” which are being excised from the garden. It bears mention that even prior to 1909 petitioner would not have prevailed in his attempt to bar prosecution on the § 7214 (a) (2) counts. As the Government notes, the version of 26 U. S. C. § 7214 then in effect defined the offense to be a misdemeanor. See Rev. Stat. §3169 (1878). Hence, the prior acquittal of his principal would not have barred petitioner’s prosecution. And because petitioner accompanied Niederberger on four of five trips and therefore was “present” at the scene of the crime, see Tr. 1018-1020, 1024-1027, 1034-1036, 1096, he could have been convicted at common law for those crimes even if the offense had been designated a felony. Nothing in Shuttlesworth v. Birmingham, 373 U. S. 262 (1963), relied on by petitioner, is to the contrary. There, petitioner" }, { "docid": "5984440", "title": "", "text": "absence of other evidence, this analysis might be persuasive because Congress treated felons and misdemeanants uniformly and employed the terminology “is a principal” which was often used at common law to refer to the legal status of an accessory to a misdemeanor. Primary evidence of congressional intent, however, is available. The final form of § 332 was reported out of the Senate on January 7, 1908. The report accompanying the bill is enlightening. See S.Rep.No.10, pt. 1, 60th Cong., 1st Sess. (1908). First, the report indicates that § 332 was derived, not from common law or state statutes, but from two specific accomplice statutes then in effect, R.S. § 5323 (piracy) and R.S. § 5427 (naturalization offenses). In explaining the introduction of § 332 and its companion provision setting the relevant penalties, the Senate noted “[t]hese sections are new only in the sense that they are made general in their application. They explain themselves.” See S.Rep.No.10, pt. 1, at 26. Moreover, the Senate clearly stated its purpose in enacting a general accomplice provision: The committee has deemed it wise to make those who are accessories before the fact at common law principal offenders, thereby permitting their indictment and conviction for a substantive offense. At common law an accessory cannot be tried without his consent before the conviction or outlawry of the principal except where the principal and the accessory are tried together; if the principal could not be found or if he had been indicted and refused to plead, had been pardoned or died before conviction, the accessory could not be tried at all. This change of the existing law renders these obstacles to justice impossible. 5. Rep.No.10, pt. 1, at 13. This report does not indicate that the Senate even recognized the common law distinction between felonies and misdemeanors for the purpose of accomplice liability, let alone intended to abrogate it entirely. I cannot conclude that Congress would have abolished such a rule of law, as suggested by Rooney, without indicating in some way that it perceived the rule in the first place. In addition, the report tells us" }, { "docid": "16253725", "title": "", "text": "advent of Section 332 of the Criminal Code, 18 U.S.C.A. § 550, •it became certain that the accessory to either a felony or misdemeanor occupied the same position as an accessory to a misdemeanor at early common law. It is not necessary that the actual principal be tried or convicted, nor is it material that the actual principal has been acquitted. The aider and abettor may be charged with the substantive offense, and each participant must stand on his own two feet. Cf. Rooney v. United States, 9 Cir., 1913, 203 F. 928; see Kelly v. United States, 6 Cir., 1919, 258 F. 392, 402; Vesely v. United States, 9 Cir., 1921, 276 F. 693, 695; Bacon v. United States, 10 Cir., 1942, 127 F.2d 985, 987; Von Patzoll v. United States, 10 Cir., 1947, 163 F.2d 216, certiorari denied October 27, 1947, 68 S.Ct. 110; cf. also Sealfon v. United States, 1948, 68 S.Ct. 237. While it is generally true that inconsistent verdicts need not be disturbed on review, there is no reason for denying to the trial judge the authority to comment upon the logic of the situation. However, the particular difficulty with the quoted' charge lies in the assertion of interrelationship of guilt, from which the jury might conclude that to convict any it had to convict all. The error is clear as to Klass, but it is not altogether free from doubt that Stalford and Happel could not have been affected; we note this for the reason that the case is to be retried. For the reasons stated, the judgments will be reversed and the cause remanded with directions to grant a new trial. Dowling Bros. Distilling Co. v. United States, 6 Cir., 1946, 153 F.2d 353, 361, certiorari denied Gould v. United States, 328 U.S. 848, 66 S.Ct. 1120, 90 L.Ed. 1622, holds otherwise where the trial court in its discretion allows the contradiction; but see Simon v. United States, 4 Cir., 1941, 123 F.2d 80, 85, certiorari denied 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555. The cases cited in support of that" }, { "docid": "22796219", "title": "", "text": "1901, Congress enacted a similar provision for the District of Columbia. The enactment of 18 U. S. C. § 2 in 1909 was part and parcel of this same reform movement. The language of the statute, as enacted, unmistakably demonstrates the point: “Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” Act of Mar. 4, 1909, § 332, 35 Stat. 1152 (emphasis added). The statute “abolishe[d] the distinction between principals and accessories and [made] them all principals.” Hammer v. United States, 271 U. S. 620, 628 (1926). Read against its common-law background, the provision evinces a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense. It gives general effect to what had always been the rule for second-degree principals and for all misdemeanants. The legislative history of § 2 confirms this understanding. The provision was recommended by the Commission to Revise and Codify the Criminal and Penal Laws of the United States as “[i]n accordance with the policy of recent legislation” by which “those whose relations to a crime would be that of accessories before the fact according to the common law are made principals.” 1 Final Report of the Commission to Revise and Codify the Laws of the United States 118-119 (1906). The Commission’s recommendation was adopted without change. The House and Senate Committee Reports, in identical language, stated its intended effect: “The committee has deemed it wise to make those who are accessories before the fact at common law principal offenders, thereby permitting their indictment and conviction for a substantive offense. “At common law an accessory can not be tried without his consent before the conviction or outlawry of the principal except where the principal and accessory are tried together; if the principal could not be found or if he had been indicted and refused to plead, had been pardoned or died before conviction, the accessory could not be tried at all. This change" }, { "docid": "5984401", "title": "", "text": "of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). . The Court requires that there be a “clear expression of an affirmative intention of Congress\" before it will bring within the coverage of a broadly worded regulatory statute certain persons whose coverage might raise constitutional questions. Ante, at 1320. But those familiar with the legislative process know that explicit expressions of congressional intent in such broadly inclusive statutes are not commonplace. Thus, by strictly or loosely applying its requirement, the Court can virtually remake congressional enactments. 440 U.S. 490, 502, 99 S.Ct. 1313, 1320, 59 L.Ed.2d 533 (Brennan, J., dissenting). . H. Friendly, Benchmarks 206 (1967). . S.Rep. No. 10, pt. 1, 60th Cong. 1st Sess. 26 (1908). . Another less drastic approach would be to apply a different canon of statutory interpretation, ejusdem generis, to the words of the Senate Report. Under this doctrine, once a statute lists items of one type, any other items are to be included only if they are of the same type. Thus the list of “obstacles to justice” found in the Senate Report would not necessarily be all inclusive since other “obstacles to justice” not included therein would be deemed within the legislative intent. But the application of ejus-dem generis to legislative history, rather than the statute itself, is as unprecedented as the application of expressio unius, exclusio alterius would be. Moreover, the Senate Report contains no words of inclusion, such as “and other such obstacles” which are usually necessary to invoke ejusdem generis rather than expressio unius, exclusio alterius — even assuming that canons of statutory interpretation may be applied to legislative history. Finally, even if ejusdem generis were applicable, the question would remain whether an outright bar to prosecution of an aider and abettor after the principal is acquitted may properly be described as an “obstacle to justice.” . 364 U.S. at 596, 81 S.Ct. at 326. . Brief for appellant sur rehearing in banc, at 22. . S.Rep. No. 1020, 82nd Cong. 1st Sess., reprinted in [1951] U.S.Code Cong. & Admin. Serv., pp. 2578, 2583. . No" }, { "docid": "5984438", "title": "", "text": "(7 Pet.) 138, 141, 8 L.Ed. 636 (1833). The federal courts simply assumed that Congress had acted on the common law principle that “all who aid, abet, procure, or advise the commission of a misdemeanor are guilty as principals.” United States v. Snyder, 14 F. 554, 556 (C.C.D.Minn.1882). See also Gallot v. United States, 87 F. 446, 448 (5th Cir. 1898). This scheme prevailed until Congress revamped the federal penal code in 1909, when it enacted a general provision making it a crime to aid or abet the commission of any federal offense: Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal. Act of March 4, 1909, ch. 321, 35 Stat. 1152. This provision became § 332 of the penal code and has survived without relevant substantive change. It is now codified at 18 U.S.C. § 2(a), the provision at issue in this case. Four years after the enactment of § 332, the Ninth Circuit offered an interpretation of Congress’s intent: The effect of the section under consideration is to abolish the distinction between principals and accessories in offenses defined in the laws of the United States, whether the same be felonies or misdemeanors. . . . [Section 332] is a recognition by Congress that the old distinction between principals and accessories which pertained to felonies is generally abrogated, and that a charge against one formerly known as an accessory is good against him as principal. Rooney v. United States, 203 F. 928, 932 (9th Cir. 1913). Several courts, including our own, accepted Rooney’s analysis uncritically, holding that Congress had intended to treat all accessories in the same manner as accessories to misdemeanors had been treated at common law. See United States v. Klass, supra, 166 F.2d at 380; Von Patzoll v. United States, 163 F.2d 216, 218 (10th Cir. 1947). See also United States v. Bryan, 483 F.2d 88, 95, 98 (3d Cir. 1973) (in banc); Kelly v. United States, 258 F. 392, 402 (6th Cir. 1919). In the" }, { "docid": "5984402", "title": "", "text": "“obstacles to justice” found in the Senate Report would not necessarily be all inclusive since other “obstacles to justice” not included therein would be deemed within the legislative intent. But the application of ejus-dem generis to legislative history, rather than the statute itself, is as unprecedented as the application of expressio unius, exclusio alterius would be. Moreover, the Senate Report contains no words of inclusion, such as “and other such obstacles” which are usually necessary to invoke ejusdem generis rather than expressio unius, exclusio alterius — even assuming that canons of statutory interpretation may be applied to legislative history. Finally, even if ejusdem generis were applicable, the question would remain whether an outright bar to prosecution of an aider and abettor after the principal is acquitted may properly be described as an “obstacle to justice.” . 364 U.S. at 596, 81 S.Ct. at 326. . Brief for appellant sur rehearing in banc, at 22. . S.Rep. No. 1020, 82nd Cong. 1st Sess., reprinted in [1951] U.S.Code Cong. & Admin. Serv., pp. 2578, 2583. . No modem court, to our knowledge, has taken the position that an aider and abettor may not be convicted if the principal is for whatever reason never brought to trial. The conviction of a principal is thus no longer a prerequisite to the conviction of an aider and abettor in any jurisdiction of which we are aware. . United States v. Shuford, 454 F.2d 772 (4th Cir. 1971); United States v. Prince, 430 F.2d 1324 (4th Cir. 1970). . See, e. g., United States v. Deutsch, 451 F.2d 98, 118-19 (2d Cir. 1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 682, 30 L.Ed.2d 667 (1972); United States v. Bryan, 483 F.2d 88 (3d Cir. 1973) (en banc); United States v. Musgrave, 483 F.2d 327, 331-32 (5th Cir. 1973); Kelly v. United States, 258 F. 392, 402 (6th Cir.), cert. denied, 249 U.S. 616, 39 S.Ct. 391, 63 L.Ed. 803 (1919); Pigman v. United States, 407 F.2d 237 (8th Cir. 1969); United States v. Azadian, 436 F.2d 81 (9th Cir. 1971); United States v. Coppola, 526 F.2d" }, { "docid": "5984348", "title": "", "text": "166 F.2d 373 (3d Cir. 1948). The Court ordered rehearing in banc in order to reconsider its position in these cases and to re-examine the law in this area. II. THE STATUS OF AIDERS AND ABETTORS UNDER FEDERAL LAW. The primary issue facing the Court at this juncture, and the one that the Court in banc requested counsel to address, is whether an aider and abettor may be convicted notwithstanding the acquittal of the principal he is charged with aiding and abetting. At common law, the prevailing rule was that an accessory to a crime could not be convicted unless and until the principal whom he had assisted had been convicted of committing the substantive offense. If the principal were to escape, or to die, or never brought to trial, or tried and acquitted, no charges could be brought against any accessories charged with assisting him. Federal law, of course, has no common law crimes, and until 1909 an accessory to a felony could not be tried at all absent an express statutory authorization making the aiding of the principal committing that crime a crime in and of itself. A nine- • teenth century federal prosecution for aiding and abetting thus required a specific “accessory provision,” and several such provisions were included among the criminal statutes of the period. In 1909, however, Congress altered this system by enacting a general rule: Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces or procures its commission, is a principal. It has long been the position of most courts and commentators that, as the Court of Appeals for the Ninth Circuit put it four years after the statute was passed: The effect of the section under consideration is to abolish the distinction between principals and accessories in offenses defined in the laws of the United States . . [T]he section under consideration is a recognition by Congress that the old distinction between principals and accessories which pertained to felonies is generally abrogated, and that a charge against one formerly known" }, { "docid": "16253724", "title": "", "text": "follows: “The verdict as you return it will be a verdict of guilty or not guilty for each of these defendants. But I will say this to you, that it would be contradictory and anomalous if you were to find the builder not guilty and the other two guilty; because they are brought in specifically on the theory of aiding and abetting. Keep that in mind, please. You can’t aid and abet nobody. “So you will weigh the evidence as it comes before you, as it relates to each of these defendants.” It should be noted that of the three appellants, only Klass raises a question as to the propriety of the charge, although in the court below exception was taken on behalf of all. It is urged by Klass, in effect, that although the jury was instructed to return a verdict of guilty or not guilty for each of the appellants, the jury might have concluded' from the comments following such instruction that a verdict of acquittal of Klass might be improper. With the advent of Section 332 of the Criminal Code, 18 U.S.C.A. § 550, •it became certain that the accessory to either a felony or misdemeanor occupied the same position as an accessory to a misdemeanor at early common law. It is not necessary that the actual principal be tried or convicted, nor is it material that the actual principal has been acquitted. The aider and abettor may be charged with the substantive offense, and each participant must stand on his own two feet. Cf. Rooney v. United States, 9 Cir., 1913, 203 F. 928; see Kelly v. United States, 6 Cir., 1919, 258 F. 392, 402; Vesely v. United States, 9 Cir., 1921, 276 F. 693, 695; Bacon v. United States, 10 Cir., 1942, 127 F.2d 985, 987; Von Patzoll v. United States, 10 Cir., 1947, 163 F.2d 216, certiorari denied October 27, 1947, 68 S.Ct. 110; cf. also Sealfon v. United States, 1948, 68 S.Ct. 237. While it is generally true that inconsistent verdicts need not be disturbed on review, there is no reason for" }, { "docid": "22796214", "title": "", "text": "fined a total of $18,000 — $2,000 on each count. Petitioner appealed his convictions to the Court of Appeals for the Third Circuit claiming, inter alia, that he could not be convicted of aiding and abetting a principal, Niederberger, when that principal had been acquitted of the charged offense. By a divided vote, the Court of Appeals, sitting en banc, rejected that contention. 610 F. 2d 1076 (1979). It concluded that “the outcome of Niederberger’s prosecution has no effect on [petitioner’s] conviction.” Id., at 1078. Because the question presented is one of importance to the administration of criminal justice on which the Courts of Appeals are in conflict, we granted certiorari. 444 U. S. 1011. We affirm. II Petitioner makes two main arguments: first, that Congress in enacting 18 U. S. C. § 2 did not intend to authorize prosecution of an aider and abettor after the principal has been acquitted of the offense charged; second, that, even if § 2 permits such a prosecution, the Government should be barred from relitigating the issue of whether Niederberger accepted unlawful compensation in connection with the Pompano Beach, Miami, and Absecon vacations. The first contention relies largely on the common law as it prevailed before the enactment of 18 U. S. C. § 2. The second rests on the contemporary doctrine of nonmutual collateral estoppel. A At common law, the subject of principals and accessories was riddled with “intricate” distinctions. 2 J. Stephen, A History of the Criminal Law of England 231 (1883). In felony cases, parties to a crime were divided into four distinct categories: (1) principals in the first degree who actually perpetrated the offense; (2) principals in the second degree who were actually or constructively present at the scene of the crime and aided or abetted its commission; (3) accessories before the fact who aided or abetted the crime, but were not present at its commission; and (4) accessories after the fact who rendered assistance after the crime was complete. See W. LaFave & A. Scott, Criminal Law § 63 (1972); 4 W. Blackstone, Commentaries *33; Perkins, Parties to" }, { "docid": "22730621", "title": "", "text": "did not question that ruling before this Court. Rather, the exchange’s complaint concerned the Court of Appeals’ refusal to invoke the doctrine of primary jurisdiction: “The Chicago Mercantile Exchange has thus been put in an intolerable position. It must diligently seek to prevent, deter, and punish violations of its rules; but enforcement of its rules now exposes it to unrestricted attacks in federal courts by disgruntled traders. This situation will disrupt, if not immobilize, the self-regulatory machinery established by the Commodity Exchange Act. The doctrine of primary jurisdiction expressed in Ricci was designed to alleviate this dilemma.” Pet. for Cert. in Chicago Mercantile Exchange v. Deaktor, O. T. 1973, No. 73-241, pp. 11-12. “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, see Albemarle Paper Co. v. Moody, 422 U. S. 405, 414, n. 8 (1975); NLRB v. Gullett Gin Co., 340 U. S. 361, 366 (1951); National Lead Co. v. United States, 252 U. S. 140, 147 (1920); 2A C. Sands, Sutherland on Statutory Construction § 49.09 and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.” Lorillard v. Pons, 434 U. S. 575, 580-581 (1978). See generally supra, at 360-367. See 7 U. S. C. § 7. See S. Rep. No. 947, 90th Cong., 2d Sess., 2-3 (1968). See, e. g., Hearings on H. R. 11955 before the House Committee on Agriculture, 93d Cong., 2d Sess., 62 (1974); Hearings on Review of Commodity Exchange Act and Discussion of Possible Changes before the House Committee on Agriculture, 93d Cong., 1st Sess., 121 (1973). In introducing the House bill, Representative Poage, the Chairman of the House Agriculture Committee, explained this development at some length. See 119 Cong. Rec. 41333 (1973). Representative Thone, a member of that Committee, later reiterated the problem. See 120 Cong." }, { "docid": "5984352", "title": "", "text": "Senate committee expressed its view regarding the purpose of the proposed legislation: The committee has deemed it wise to make those who are accessories before the fact at common law principal offenders, thereby permitting their indictment and conviction for a substantive offense. At common law an accessory cannot be tried without his consent before the conviction or outlawry of the principal except where the principal and the accessory are tried together; if the principal could not be found or if he had been indicted and refused to plead, had been pardoned or dies before conviction, the accessory could not be tried at all. This change of the existing law renders these obstacles to justice impossible. Although the Senate Committee did not, in either the quoted passage or elsewhere, express an intention to make any exception to the general rule announced in the statute itself, namely that an aider and abettor is to be treated as a principal, it is asserted that the Senate, at least, envisioned reaching only certain “obstacles to justice” which are clearly set out in the Committee’s notes. The argument proceeds that inasmuch as the situation at issue in this case — where the principal has been acquitted — is one of the more obvious possibilities that might arise in aider and abettor cases and is not adverted to in the report, a doubt arises whether the prior law was intended to be altered in this regard. Such a doubt, it is then asserted, must, under traditional rules of statutory construction, be resolved in favor of a criminal defendant and against the government. We are unpersuaded that this approach yields a proper interpretation of 18 U.S.C. § 2(a). The limited exception contended for by our colleagues does not appear in the language of the statute nor is it at any time specifically endorsed in the legislative history. Further, in the more than seventy years since the passage of the statute no court or commentator has ever suggested, even in passing, that the Congress sought to create or retain such a remnant of the common law rule. The" }, { "docid": "22796236", "title": "", "text": "being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes. . . .” Act of Mar. 3, 1901, § 908, 31 Stat. 1337; D. C. Code § 22-105 (1973) (emphasis added). In 1951, the words “is a principal” were altered to read “is punishable as a principal.” That change was designed to eliminate all doubt that in the case of offenses whose prohibition is directed at members of specified classes (e. g., federal employees) a person who is not himself a member of that class may nonetheless be punished as a principal if he induces a person in that class to violate the prohibition. See S. Rep. No. 1020, 82d Cong., 1st Sess., 7-8 (1951). The change was fully consistent with congressional intent to treat accessories before the fact as principals and to abolish the common-law procedural bar. Indeed, by the time of the 1951 re-enactment, the Circuit Courts that had addressed the question had concluded that § 2 authorizes conviction of an aider and abettor notwithstanding the prior acquittal of the perpetrator of the offense. See United States v. Klass, 166 F. 2d 373, 380 (CA3 1948); Von Patzoll v. United States, 163 F. 2d 216, 219 (CA10 1947); Kelly v. United States, 258 F. 392, 402 (CA6 1919); Rooney v. United States, 203 F. 928, 931-932 (CA9 1913). Congress manifested no intent to disturb this interpretation. See Lorillard v. Pons, 434 U. S. 575, 580 (1978). Petitioner emphasizes the fact that the Committee Report fails to mention the common-law rule that the prior acquittal of a principal barred conviction of an accessory, and argues accordingly that Congress did not view that rule as an “obstacle to justice.” The Court of Appeals correctly rejected this argument, being unwilling to “apply the canon of statutory interpretation . . . expressio unius, exchisio alterius ... to the language employed in a committee report.” 610 F. 2d 1076, 1084 (CA3 1979) (emphasis added). We agree. Petitioner’s argument would permit an omission in the legislative history to nullify the plain" }, { "docid": "5984435", "title": "", "text": "not extend that holding beyond the facts which controlled there. A court “must be alert to see that a doubtful precedent be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be” sound legal precepts. Dimick v. Schiedt, 293 U.S. 474, 485, 55 S.Ct. 296, 300, 79 L.Ed. 603 (1935). What divided the Bryan court and what divides the court here is the weight to be placed on competing principles of criminal law when the source of decision is not unerringly supplied by precedent, statute or the Constitution. My conclusion is predicated on different principles than those selected by the majority. Three fundamental reasons convince me that an aider and abettor cannot be convicted when the only possible principal has been acquitted. A. The first is my doubt that Congress, in enacting 18 U.S.C. § 2, the aiding and abetting statute, ever intended that an aider and abettor might be convicted when the principal has been acquitted. Although this court has asserted for thirty years that a defendant may be convicted of aiding the commission of a felony under 18 U.S.C. § 2 even though the alleged principal has been acquitted, see United States v. Klass, 166 F.2d 373, 380 (3d Cir. 1948), I believe that our position has not properly reflected congressional intent. Common law distinguished between felonies and misdemeanors for the purpose of accomplice liability. See W. LaFave & A. Scott, Criminal Law 496 (1972). The criminal responsibility of an accessory to a non-capital felony was purely derivative, that is, conviction or outlawry of the principal was an absolute prerequisite to conviction of the accessory. If the principal was unknown, at large, or pardoned prior to trial, the accessory could not be punished. Needless to say, acquittal of the principal precluded conviction of the accessory. See generally id. at 495-501. Where the substantive offense was a misdemeanor, however, all participants, including accessories before the fact, were considered principals in the offense and could be tried, convicted, and punished without regard to the disposition of charges" }, { "docid": "22796235", "title": "", "text": "Code Ann. § 2923.03 (1979); Ore. Rev. Stat. § 161.160 (1979); Vt. Stat. Ann., Tit. 13, § 3 (1974); Va. Code § 18.2-21 (1975); W. Va. Code § 61-11-7 (1977); Wyo. Stat. § 6-1-114 (1977). Only four States — Maryland, North Carolina, Rhode Island, and Tennessee — clearly retain the common-law bar. See State v. Ward, 284 Md. 189, 396 A. 2d 1041 (1978); State v. Jones, 101 N. C. 719, 8 S. E. 147 (1888) (interpreting N. C. Gen. Stat. § 14-5 (1969)); R. I. Gen. Laws § 11-1-3 (1970); Pierce v. State, 130 Tenn. 24, 168 S. W. 851 (1914). The Model Penal Code provides that an accomplice may be convicted “though the person claimed to have committed the offense . . . has been acquitted.” § 2.06(7) (Tent. Draft No. 3, 1955), and see comments 38-39 (Tent. Draft No. 1, 1953). The provision is still in effect; it provides that all persons “aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes. . . .” Act of Mar. 3, 1901, § 908, 31 Stat. 1337; D. C. Code § 22-105 (1973) (emphasis added). In 1951, the words “is a principal” were altered to read “is punishable as a principal.” That change was designed to eliminate all doubt that in the case of offenses whose prohibition is directed at members of specified classes (e. g., federal employees) a person who is not himself a member of that class may nonetheless be punished as a principal if he induces a person in that class to violate the prohibition. See S. Rep. No. 1020, 82d Cong., 1st Sess., 7-8 (1951). The change was fully consistent with congressional intent to treat accessories before the fact as principals and to abolish the common-law procedural bar. Indeed, by the time of the 1951 re-enactment, the Circuit Courts that had addressed the question had concluded that § 2 authorizes conviction of" }, { "docid": "22796218", "title": "", "text": "In the process, justice all too frequently was defeated. To overcome these judge-made rules, statutes were enacted in England and in the United States. In 1848 the Parliament enacted a statute providing that an accessory before the fact could be “indicted, tried, convicted, and punished in all respects like the Principal.” 11 & 12 Vic. ch. 46, § 1 (emphasis added). As interpreted, the statute permitted an accessory to be convicted “although the principal be acquitted.” Queen v. Hughes, Bell 242, 248, 169 Eng. Rep. 1245, 1248 (1860). Several state legislatures followed suit. In 1899, Congress joined this growing reform movement with the enactment of a general penal code for Alaska which abrogated the common-law distinctions and provided that “all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the crime or aid and abet in its commission, though not present, are principals, and to be tried and punished as such.” Act of Mar. 3, 1899, § 186, 30 Stat. 1282. In 1901, Congress enacted a similar provision for the District of Columbia. The enactment of 18 U. S. C. § 2 in 1909 was part and parcel of this same reform movement. The language of the statute, as enacted, unmistakably demonstrates the point: “Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” Act of Mar. 4, 1909, § 332, 35 Stat. 1152 (emphasis added). The statute “abolishe[d] the distinction between principals and accessories and [made] them all principals.” Hammer v. United States, 271 U. S. 620, 628 (1926). Read against its common-law background, the provision evinces a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense. It gives general effect to what had always been the rule for second-degree principals and for all misdemeanants. The legislative history of § 2 confirms this understanding. The provision was recommended by the Commission to Revise" }, { "docid": "22796220", "title": "", "text": "and Codify the Criminal and Penal Laws of the United States as “[i]n accordance with the policy of recent legislation” by which “those whose relations to a crime would be that of accessories before the fact according to the common law are made principals.” 1 Final Report of the Commission to Revise and Codify the Laws of the United States 118-119 (1906). The Commission’s recommendation was adopted without change. The House and Senate Committee Reports, in identical language, stated its intended effect: “The committee has deemed it wise to make those who are accessories before the fact at common law principal offenders, thereby permitting their indictment and conviction for a substantive offense. “At common law an accessory can not be tried without his consent before the conviction or outlawry of the principal except where the principal and accessory are tried together; if the principal could not be found or if he had been indicted and refused to plead, had been pardoned or died before conviction, the accessory could not be tried at all. This change of the existing law renders these obstacles to justice impossible.” S. Rep. No. 10, 60th Cong., 1st Sess., pt. 1, p. 13 (1908); H. R. Rep. No. 2, 60th Cong., 1st Sess., pt. 1, p. 13 (1908). And on the floor of the House of Representatives, Representative Moon, the Chairman of the Joint Select Committee, put the point simply: “We . . . have abolished the existing arbitrary distinction between felonies and misdemeanors.” 42 Cong. Rec. 585 (1908). This history plainly rebuts petitioner’s contention that § 2 was not intended to authorize conviction of an aider and abettor after the principal had been acquitted of the offense charged. With the enactment of that section, all partici- . pants in conduct violating a federal criminal statute are “principals.” As such, they are punishable for their criminal conduct; the fate of other participants is irrelevant. B The doctrine of nonmutual collateral estoppel was unknown to the common law and to the Congress when it enacted § 2 in 1909. It emerged in a civil case in 1942," }, { "docid": "5984347", "title": "", "text": "procedure to go through. Accordingly, there was ample, perhaps even overwhelming, evidence in the record to support the jury’s finding that the gifts Standefer made to Niederberger were not provided solely for social reasons. On appeal to this Court Standefer has urged, inter alia, that three of the § 7214(a)(2) counts — those based on the trips to Pompano Beach, Miami, and Abse-con — should have been dismissed because of Niederberger’s acquittal on practically identical charges. Specifically, Standefer argues that as a matter of law he cannot be convicted of aiding and abetting a principal when that principal has been acquitted of committing the charged offense. A divided panel rejected this argument, relying on past decisions of this Court that have permitted the conviction of an aider and abettor even when the principal has been acquitted. See United States v. Bryan, 483 F.2d 88 (3d Cir. 1973) (en banc); United States v. Provenzano, 334 F.2d 678, 691 (3d Cir.), cert. denied, 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544 (1964); United States v. Klass, 166 F.2d 373 (3d Cir. 1948). The Court ordered rehearing in banc in order to reconsider its position in these cases and to re-examine the law in this area. II. THE STATUS OF AIDERS AND ABETTORS UNDER FEDERAL LAW. The primary issue facing the Court at this juncture, and the one that the Court in banc requested counsel to address, is whether an aider and abettor may be convicted notwithstanding the acquittal of the principal he is charged with aiding and abetting. At common law, the prevailing rule was that an accessory to a crime could not be convicted unless and until the principal whom he had assisted had been convicted of committing the substantive offense. If the principal were to escape, or to die, or never brought to trial, or tried and acquitted, no charges could be brought against any accessories charged with assisting him. Federal law, of course, has no common law crimes, and until 1909 an accessory to a felony could not be tried at all absent an express statutory authorization making" }, { "docid": "5984439", "title": "", "text": "offered an interpretation of Congress’s intent: The effect of the section under consideration is to abolish the distinction between principals and accessories in offenses defined in the laws of the United States, whether the same be felonies or misdemeanors. . . . [Section 332] is a recognition by Congress that the old distinction between principals and accessories which pertained to felonies is generally abrogated, and that a charge against one formerly known as an accessory is good against him as principal. Rooney v. United States, 203 F. 928, 932 (9th Cir. 1913). Several courts, including our own, accepted Rooney’s analysis uncritically, holding that Congress had intended to treat all accessories in the same manner as accessories to misdemeanors had been treated at common law. See United States v. Klass, supra, 166 F.2d at 380; Von Patzoll v. United States, 163 F.2d 216, 218 (10th Cir. 1947). See also United States v. Bryan, 483 F.2d 88, 95, 98 (3d Cir. 1973) (in banc); Kelly v. United States, 258 F. 392, 402 (6th Cir. 1919). In the absence of other evidence, this analysis might be persuasive because Congress treated felons and misdemeanants uniformly and employed the terminology “is a principal” which was often used at common law to refer to the legal status of an accessory to a misdemeanor. Primary evidence of congressional intent, however, is available. The final form of § 332 was reported out of the Senate on January 7, 1908. The report accompanying the bill is enlightening. See S.Rep.No.10, pt. 1, 60th Cong., 1st Sess. (1908). First, the report indicates that § 332 was derived, not from common law or state statutes, but from two specific accomplice statutes then in effect, R.S. § 5323 (piracy) and R.S. § 5427 (naturalization offenses). In explaining the introduction of § 332 and its companion provision setting the relevant penalties, the Senate noted “[t]hese sections are new only in the sense that they are made general in their application. They explain themselves.” See S.Rep.No.10, pt. 1, at 26. Moreover, the Senate clearly stated its purpose in enacting a general accomplice provision: The committee" } ]

[ { "docid": "15442219", "title": "", "text": "Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent.” West Publ’g Co. v. Edward Thompson Co., 169 F. 833, 861 (E.D.N.Y. 1909). This principle reflects the legal maxim, de minimis non curatlex (often rendered as, “the law does not concern itself with trifles”). See Ringgold, 126 F.3d at 74-75. Newton, 388 F.3d at 1192-93. In other words, to establish its infringement claim, Plaintiff must show that the copying was greater than de minimis. Plaintiffs claim encompasses two distinct alleged infringements: infringement of the copyright to the composition of Love Break and infringement of the copyright to the sound recording of Love Break. Compare 17 U.S.C. § 102(a)(2) (protecting “musical works”) with id. § 102(a)(7) (protecting “sound recordings”); see Erickson v. Blake, 839 F.Supp.2d 1132, 1135 n.3 (D. Or. 2012) (“Sound recordings and musical compositions are separate works with their own distinct copyrights.”); see also Newton, 388 F.3d at 1193-94 (noting the distinction). We squarely held in Newton, 388 F.3d at 1193, that the de minimis exception applies to claims of infringement of a copyrighted composition. But it is an open question in this circuit whether the excep tion applies to claims of infringement of a copyrighted sound recording. Below, we address (A) whether the alleged copying of the composition or the sound recording was de minimis, (B) whether the de minimis exception applies to alleged infringement of copyrighted sound recordings, and (C) whether the district court abused its discretion in awarding attorney’s fees to Defendants under 17 U.S.C. § 505. A. Application of the De Minimis Exception A “use is de minimis only if the average audience would not recognize the appropriation.” Newton, 388 F.3d at 1193; see id. at 1196 (affirming the grant of summary judgment because “an average audience would not discern Newton’s hand as a composer ... from Beastie Boys’ use of the sample”); Fisher v. Dees, 794 F.2d 432, 435 n.2 (9th Cir. 1986) (“As a rule, a taking is considered de minimis only if it is so meager and fragmentary that the average" } ]

[ { "docid": "20791636", "title": "", "text": "Appeals has not yet had occasion to consider the protection of unpublished musical compositions which rely on common law rights against unauthorized phonograph records. Section 2 of the Copyright Act recognizes the continued validity of common law rights in an “unpublished work” and confirms the right of an author to prevent “[the] use of such unpublished work.” The 1909 Act was a comprehensive revision of the Copyright Law. As we have seen, the Supreme Court in White-Smith had previously ruled that the recordation of a musical composition by mechanical means did not make the record (piano roll) a “copy” of the composition. The drafters of the 1909 Act stated that “it is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the .composer or copyright proprietor the control, in accordance with the provisions of the bill, of the manufacture and use of such devices.” House Reports, 60th Cong.2d Sess.Vol. 1 (1909), p. 9. The provisions of the bill referred to included the now familiar compulsory licensing provision whereunder the payment of a royalty of two cents per record anyone may use the copyrighted composition (§ 1(e)). The assumption remained, however, that the musical composition itself was a thing apart from its performance on a phonograph record. In this light the Act provided for two different protections for the unpublished musical composition itself. First, a new statutory method of copyright was provided in Section 11 for unpublished works and second, common law rights were preserved in unpublished works. It has been held, however, that an author is not compelled to resort to a Section 11 copyright to avoid forfeiture of his common law rights. Nutt v. National Institute Inc. for the Imp. of Memory, 31 F.2d 236 (2 Cir. 1929). While that is true of the author of an unpublished manuscript it does not follow that it is also necessarily true of a composer of an unpublished composition who has chosen to make and sell phonograph records for which special provision has been made in the Copyright Act. The" }, { "docid": "11963494", "title": "", "text": "17 U.S.C. § 10 (1909 Act). If a work was published without a valid copyright notice, however, the wmrk irretrievably entered the public domain. The 1909 Act did not define “publication,” and the courts have split on the proper definition. See 2 NimmeR on Copyright § 7.02[C][1]; La Cienega Music Co. v. ZZ Top, 53 F.3d 950, 952-53 (9th Cir.), cert. denied, 516 U.S. 927, 116 S.Ct. 331, 133 L.Ed.2d 231 (1995). Relying on a Supreme Court case that had determined that a player piano roll did not constitute a copy of the musical composition, see White-Smith Music Pub Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (1908), the Southern District of New York concluded that a phonorecord could not be a copy of a composition and, thus, that the distribution of phonorecords could not constitute publication. See Rosette v. Rainbo Record Mfg. Corp., 354 F.Supp. 1183, 1189 (S.D.N.Y.1973). The Second Circuit affirmed on the opinion of the district court. See Rosette v. Rainbo Record Mfg. Corp., 546 F.2d 461 (2d Cir.1976). The Ninth Circuit declined to follow Rosette in La Cienega, 53 F.3d at 953, concluding that Rosette reflected the minority rule and that following the Rosette approach would reduce the incentive of artists to register copyrights. This court has only considered this issue in an unpublished opinion in the case of Leeds Music Corp. v. Gusto Records, Inc., 601 F.2d 589, 1979 U.S.App. LEXIS 13834 (6th Cir.1979). There, in affirming the district court, the panel held that the court had “properly rejected the Rosette case as an applicable rule of copyright law.” Id. In granting summary judgment to the defendants, the district court below followed Leeds and La Cienega and concluded that the public distribution of phonorecords constitutes publication of the underlying composition for the purposes of the 1909 Act. May-hew, of course, disputes that interpretation, and he points to a statute, enacted after the district court’s order granting summary judgment, that apparently resolves the definitional question in his favor. By dictating that “[t]he distribution before January 1, 1978, of a phonorecord shall" }, { "docid": "4009871", "title": "", "text": "accept an invalid assignment of rights from Shield, knowing that its parent company already owned those rights. Following the assignment, Southern filed copyright registrations on the songs, naming Shield as the composer. Moreover, Southern later renewed the copyrights for some of the songs in Shield’s name. Southern also assured Shield in writing that “[i]n the event any of these selections are not actively promoted by us, we agree to assign them to you on demand.” Finally, in 1932, Southern licensed the synchronization rights in the songs to HRS. Had the songs been written for HRS as works for hire, there would have been no need for such a license. We hold that the above-cited evidence was sufficient to rebut the presumption that the songs composed by Shield were intended to be works for hire. III. Agee Presented Insufficient Evidence of “Publication” of the Motion Pictures Agee next contends that Shield lost his common-law copyright in the songs when the motion pictures were released. According to Agee, the prior publication of the motion pictures by distribution to film exchanges, without Shield’s separate copyright notice for the songs, injected the underlying musical compositions into the public domain, and thus divested the musical compositions of their common-law copyrights. The district court rejected this argument, holding, as a matter of law, that the publication of a motion picture is not a publication of the underlying musical compositions. Under the Copyright Act of 1909, a properly recorded artistic work receives copyright protection for 28 years from the date of first publication, and the author may renew the copyright term for an additional 28-year period. 1909 Act, eh. 320, § 23, 35 Stat. 1075, 1080. Under the 1909 Act, an unpublished work was protected by state common-law copyright from the moment of its creation until it was either published or until it received protection under the federal copyright scheme. La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir.), cert. denied, 516 U.S. 927, 116 S.Ct. 331, 133 L.Ed.2d 231 (1995) (citations omitted). When a work was published, it lost common-law protection. Id. at" }, { "docid": "22131629", "title": "", "text": "Stat. 1082. Interestingly, however, the 1909 Act did not extend criminal liability to infringement by unauthorized mechanical reproduction of copyrighted musical compositions subject to compulsory licensing, the category of infringement underlying the § 2314 counts here. See § 25(e), 35 Stat. 1081. Congress did not remove this bar until the Sound Recording Act of 1971, Pub. L. 92-140, 85 Stat. 391, which, while for the first time extending federal copyright coverage to sound recordings, see n. 4, supra, also made willful infringement of copyright in musical compositions subject to the general criminal provision. See 85 Stat. 392. Congress first provided criminal penalties for copyright infringement in the Act of Jan. 6,1897, 29 Stat. 481, which made a misdemeanor, punishable by imprisonment for one year, of the unlawful performance or presentation, done willfully and for profit, of a copyrighted dramatic or musical composition. See also Act of May 31, 1790, § 2, 1 Stat. 124 (fixed civil penalties, one-half payable to the United States, for unauthorized copying of copyrighted book, chart, or map). See generally Young, Criminal Copyright Infringement and a Step Beyond, reprinted in 30 ASCAP Copyright Law Symposium 157 (1983); Gawthrop, An Inquiry Into Criminal Copyright Infringement, reprinted in 20 ASCAP Copyright Law Symposium 154 (1972). Act of July 30, 1947, ch. 391, 61 Stat. 652. Act of Dec. 31, 1974, Pub. L. 93-573, 88 Stat. 1873. A second violation subjected the offender to a fine of up to $50,000 or imprisonment for not more than two years, or both. 17 U. S. C. § 104(b) (1976 ed.). See H. R. Rep. No. 93-1581, p. 4 (1974). The Act also substantially increased penalties for trafficking in counterfeit labels affixed to sound recordings, motion pictures, and other audiovisual works. 18 U. S. C. § 2318. The dissent suggests that by providing that the new penalties “shall be in addition to any other provisions of Title 17 or any other law,” 18 U. S. C. § 2319(a), Congress “implicitly” approved the interpretation of §2314 urged by the Government. Post, at 233. Neither the text nor the legislative history of either the" }, { "docid": "17215959", "title": "", "text": "or reproduced ...\" for the purposes of copying or vending the copyrighted work. Copyright Act 1909, codified at 17 U.S.C. §§ 1-216 (1976), hereinafter referred to as the 1909 Act. It has been, superseded by the Copyright Act of 1976, Pub.L. No. 94-553, 90 Stat. 2541, codified at 17 U.S.C. §§ 101-810 (Supp. V 1981) which became effective January 1, 1978, and is hereinafter referred to as the 1976 Act. Licenses to duplicate the sound recording are generally termed \"mechanical licenses.” . The compulsory licensing provision, §§ 1(e) and 101(e) of the 1909 Act (now codified with modifications as 17 U.S.C. § 115 (Supp. V 1981)), provided in part: as a condition of extending the copyrighted control to such mechanical reproductions, that whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each such part manufactured, to be paid by the manufacturer thereof.... 17 U.S.C. § 1(e) (1976). In fact, compulsory licenses are not applicable to duplication of an existing recording. Duchess Music Corp. v. Stern, 458 F.2d 1305, 1310 (9th Cir.) cert. denied 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88 (1972). . The Bankruptcy Act was repealed by the Bankruptcy Reform Act of 1978, P.L. 95-598, 92 Stat. 2549, 2682. The Bankruptcy Act continues to apply to this case. Id., § 403(a). . Although Westermann arises under the 1909 Act, it applies equally to the 1976 Act. Nimmer On Copyright § 14.04[B] at 14-24. . \"It shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, and any failure to file such notice shall be a complete defense to any suit," }, { "docid": "410350", "title": "", "text": "F.2d 1040, 1045 (9th Cir.1989). IV. DISCUSSION A. Copyright Act Claim 1. The Difference Between the Musical Composition and the Sound Recording Sound recordings and their underlying musical compositions are separate works with their own distinct copyrights. See 17 U.S.C. § 102(a)(2), (7). “When a copyrighted song is recorded on a phono-record, there are two separate copyrights: one in the musical composition and the other in the sound recording.” T.B. Harms Co. v. Jem Records, Inc., 655 F.Supp. 1575, 1576 n. 1 (D.N.J.1987). See also BTE v. Bonnecaze, 43 F.Supp.2d 619, 627 (E.D.La.1999); Jarvis v. A & M Records, 827 F.Supp. 282, 292 (D.N.J.1993) (“Under the Copyright Act, there is a well-established distinction between sound recordings and musical compositions.”). The rights of a copyright in a sound recording do not extend to the song itself, and vice versa. BTE, 43 F.Supp.2d at 627; T.B. Harms, 655 F.Supp. at 1576 n. 1. It is undisputed that Plaintiff has no rights to the sound recording of his performance of Choir, having licensed it for a fee to ECM Records, who, in turn, granted Defendants a license to sample it. FAC ¶ 26, Ex. D. Defendants’ Statement of Uncontroverted Facts ¶ 3; Plaintiffs Statement of Genuine Issues ¶ 3. However, Plaintiff contends that Defendants’ sampling infringed upon his underlying musical composition. Accordingly, the court must first determine what elements of Plaintiffs work are protected by his copyright in the musical composition, as opposed to those protected by the copyright in the sound recording, and “filter out” the latter. See Sony Pictures Enter., Inc. v. Fireworks Enter. Group, Inc., 156 F.Supp.2d 1148, 1157 (C.D.Cal.2001). “Because only those elements of a work that are protectable and used without the author’s permission can be compared when it comes to the ultimate question of illicit copying, [courts use] analytic dissection to determine the scope of copyright protection before works are considered as a ‘whole.’ ” Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir.1994). Plaintiff argués that analytic dissection is not required, because copyright law automatically protects copyrightable expression reduced to a musical score" }, { "docid": "23677418", "title": "", "text": "Lone Ranger tapes, Lewis in effect sought to manufacture and publish his own derivative work from the underlying scripts or make his own public production of the underlying scripts, just as if he had hired the actors, sound effects crew, and producers originally used for the tapes to do a second interpretation of the scripts for an audience. Comparisons with analogous precedents indicate that this interference with Lone Ranger TV’s exclusive derivative rights in the scripts constitutes infringement. In our leading music case, Duchess Music Corp. v. Stern, 458 F.2d 1305 (9th Cir.), cert. denied, 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88 (1972) (Duchess Music), copyright owners of various compositions sued several “tape pirates” selling tapes of phonograph records licensed by the copyright holders. We held that despite the 1909 Act’s special provisions allowing anyone paying a small royalty to make “similar use” of a musical composition of which the owner had permitted any “mechanical reproduction,” see 17 U.S.C.A. app. § 1(e) (West Supp.1983), the pirates could not sell “exact and identical copies of appellants’ records,” 458 F.2d at 1310. We said: “if the underlying work is copyrighted, there may be an infringement of that copyright by duplicating the record.” Id. at 1309 n. 7, citing Shapiro, Bernstein & Co. v. Goody, 248 F.2d 260 (2d Cir.1957), cert. denied, 355 U.S. 952, 78 S.Ct. 536, 2 L.Ed.2d 529 (1958). Cf. RCA Manufacturing Co. v. Whiteman, 114 F.2d 86, 88-89 (2d Cir.), cert. denied, 311 U.S. 712, 61 S.Ct. 394, 85 L.Ed. 463 (1940) (no infringement from copying a record of a musical score in the public domain). Program Radio contends that the 1909 Act provided protections unique to musical compositions, but our leading film case shows that the principle of protecting derivative works also applies to the ubiquitous literary or dramatic work. See Russell v. Price, 612 F.2d 1123 (9th Cir.1979), cert. denied, 446 U.S. 952, 100 S.Ct. 2919, 64 L.Ed.2d 809 (1980) (Russell). There, the copyright owners of George Bernard Shaw’s play “Pygmalion” sued a film distributor leasing, without their license, prints of the film “Pygmalion” derived" }, { "docid": "20791634", "title": "", "text": "mechanical reproduction of a musical composition originally came before the Supreme Court in the famous case of White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (1908). There the Court held that a music roll for mechanical pianos did not constitute a “copy” of the recorded music and hence was not an infringement of it. From this result it was logical to conclude that if the infringing music roll was not a copy of the composition so as to cast its maker in liability, the creation of a music roll by the author himself would not make it a “copy” of his work and hence not a publication of it. The White-Smith result can also be rationalized as an opinion that mechanical reproduction is performance, like live performance, and is, therefore, not publication. The Court noted: “As the Act of Congress now stands we believe it does not include these records as copies or publications of the copyrighted music involved in these cases.” 209 U.S. at 18, 28 S.Ct. at 323 (emphasis supplied). The Ninth Circuit in Corcoran v. Montgomery Ward & Co., 121 F.2d 572 (9 Cir. 1941) seems to have specifically extended the White-Smith rule to phonograph records. The Copyright Act was completely revised in 1909. The impact of the White-Smith case was limited by the statutory provision in the 1909 Act that “[c]opyright may also be had of the works of an author, of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production or a dramatic, musical, or dramatico-musical composition” (formerly Section 11 of the 1909 Act), 17 U.S.C. § 12. Thus, copyright protection was made available for unpublished musical compositions. And the sale of records of a musical composition registered under Section 11 of the Copyright Act will not terminate its copyright protection, Yacaubian v. Carroll, 74 U.S.P.Q. 257 (S. D.Cal.1947) against unauthorized phonograph records. Shilkret v. Musicraft Records, 131 F.2d 929 (2 Cir. 1942). But the Court of" }, { "docid": "4009872", "title": "", "text": "to film exchanges, without Shield’s separate copyright notice for the songs, injected the underlying musical compositions into the public domain, and thus divested the musical compositions of their common-law copyrights. The district court rejected this argument, holding, as a matter of law, that the publication of a motion picture is not a publication of the underlying musical compositions. Under the Copyright Act of 1909, a properly recorded artistic work receives copyright protection for 28 years from the date of first publication, and the author may renew the copyright term for an additional 28-year period. 1909 Act, eh. 320, § 23, 35 Stat. 1075, 1080. Under the 1909 Act, an unpublished work was protected by state common-law copyright from the moment of its creation until it was either published or until it received protection under the federal copyright scheme. La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir.), cert. denied, 516 U.S. 927, 116 S.Ct. 331, 133 L.Ed.2d 231 (1995) (citations omitted). When a work was published, it lost common-law protection. Id. at 952-53. However, the owner could obtain federal protection for the published work by complying with the requirements of the 1909 Act. Id. at 953. If the owner failed to satisfy the Act’s requirements, the work was injected irrevocably into the public domain. Id. We have held that “publication occurs when by consent of the copyright owner, the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public....” American Vitagraph, Inc. v. Levy, 659 F.2d 1023, 1027 (9th Cir.1981) (quoting Nimmer on Copyright § 4.04 at 4-18 to 4-19). However, “mere performance or exhibition of a work does not constitute a publication of that work.... [A] motion picture exhibition where the viewing audience is merely permitted to see the work is not a publication.” Id. at 1027 (citations omitted); see also Nimmer § 4.11(A) at 4-53 (“[I]t is clear that the projection or exhibition of a motion picture in theatres or elsewhere does not in itself constitute a publication”). We have also held that “it" }, { "docid": "3808365", "title": "", "text": "OPINION EDWARD WEINFELD, District Judge. This is a case of novel impression involving the interpretation of the “derivative works exception” of the Copyright Act of 1976 (the “1976 Act”) which became effective January 1, 1978. The parties to this litigation are in agreement that the material facts are undisputed; that the only issues are legal and the matter is ripe for disposition under their cross-motions for summary judgment made pursuant to Rule 56 of the Federal Rules of Civil Procedure. Under section 24 of the Copyright Act of 1909 (the “1909 Act”), an author or composer of a work was granted copyright protection for a total period of 56 years — an initial term of 28 years and a renewal term of 28 years with the right of assignment of each term. The 1976 Act extended renewal copyrights subsisting at any time within the year prior to January 1, 1978 for an additional 19 years to a total of 75 years. The authors and composers are given the right to recapture the benefits of the additional 19 years by terminating grants previously made to others. However, this right of termination and recapture of the copyright by the author is subject to an exception for “derivative works,” such as sound recordings of a copyrighted song. Under this exception, when such “derivative works” are created under authority of the grant before its termination, they “may continue to be utilized under the terms of the grant after its termination.” Broadly stated, the dispute in this case is between a music publisher to whom an author had assigned his renewal copyright to a musical composition and the author who exercised his right of termination. The issue presented is the application of the derivative works exception (the “Exception”) to determine the respective rights of the author and the music publisher to royalties generated from sound recordings of the composition that were prepared by record companies before the effective date of termination. The authors claim they or their statutory heirs are entitled to all mechanical royalties earned after termination, regardless of when the recordings were made." }, { "docid": "23677417", "title": "", "text": "an existing work effectively creates a new work for a different market.” Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J. Copyright Soc’y U.S.A. 209, 217 (1983). Cf. Sony, 104 S.Ct. at 811 (Blackmun, J., dissenting). The Lone Ranger tapes meet this test: the contribution of independent expression by the actors, together with the contribution of independent expression by the special production methods of taping and editing for radio, effectively created a new work for a market different from both the market for printed scripts and the market for live dramas. Cf. Gilliam v. American Broadcasting Co., 538 F.2d 14, 19-20 (2d Cir.1976) (videotaped programs of Monty Python skits are derivative works under the 1909 Act). Thus, although “[a]n unli censed use of [a] copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute,” Sony, 104 S.Ct. at 791 (1976 Act), the 1909 Act does confer a right with which Program Radio’s unlicensed tapes of the scripts conflict. In duplicating, remixing, and distributing the Lone Ranger tapes, Lewis in effect sought to manufacture and publish his own derivative work from the underlying scripts or make his own public production of the underlying scripts, just as if he had hired the actors, sound effects crew, and producers originally used for the tapes to do a second interpretation of the scripts for an audience. Comparisons with analogous precedents indicate that this interference with Lone Ranger TV’s exclusive derivative rights in the scripts constitutes infringement. In our leading music case, Duchess Music Corp. v. Stern, 458 F.2d 1305 (9th Cir.), cert. denied, 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88 (1972) (Duchess Music), copyright owners of various compositions sued several “tape pirates” selling tapes of phonograph records licensed by the copyright holders. We held that despite the 1909 Act’s special provisions allowing anyone paying a small royalty to make “similar use” of a musical composition of which the owner had permitted any “mechanical reproduction,” see 17 U.S.C.A. app. § 1(e) (West Supp.1983), the pirates could not sell “exact and identical copies" }, { "docid": "4098157", "title": "", "text": "motion picture, any other result under the 1909 Act would grant an author multiple rights to first publication and would allow an author to publish in one medium with a statutory copyright but leave the work unpublished in a separate medium to extend copyright protection in perpetuity. See Classic Film, 597 F.2d at 14-15. We find no statute or case law holding that a textual work can only be published by print. Rather, the Supreme Court has stated that “[t]he right of first publication encompasses not only the choice whether to publish at all, but also the choices when, where, and in what form first to publish a work.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). In addition, our holding is consistent with this court’s decision in La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir.1995). In La Cienega, we held that publication of a musical composition called Boogie Chillen occurred when the recorded song was released to the general public, even though the recording existed in a different medium than the printed version of the composition. Id. at 952-53. We noted that otherwise a song left unpublished and protected by common law copyright would gain an advantage over a song copyrighted in compliance with the 1909 Act which would have only 28 years of protection. Id. at 953. Although the result of our holding in La Cienega has been subsequently changed by Congress’ passage and enactment of H.R. 672, its reasoning is still sound. If Congress wants to prevent common law screenplays from entering into the public domain through publication of a motion picture, it can pass a law similar to H.R. 672. Nor are we persuaded that § 2 of the 1909 Act works as a talisman to protect common law copyrights in this situation. Section 2 prevents the provisions of the 1909 Act from annulling or otherwise limiting common law copyright. 17 U.S.C. § 2 (repealed effective 1978). Our holding that § 7 is inapplicable, however, does not interfere with Batjac’s common" }, { "docid": "4009876", "title": "", "text": "Cienega, we held that a record is a “copy” of the work recorded, and that the underlying compositions on the record are therefore “published” at the time the recordings are sold to the public. La Cienega, 53 F.3d at 953. Thus, where a composer fails to satisfy the requirements of the 1909 Act, his compositions enter the public domain immediately upon sale of recordings to the public. Id. at 954. But see Rosette v. Rainbo Record Mfg. Corp., 354 F.Supp. 1183 (S.D.N.Y.1973), aff'd per curiam, 546 F.2d 461 (2d Cir.1976) (holding that a record is not a “copy” of a musical composition, and sale of a record is not a publication divesting the composer of his common-law copyright). Agee’s reliance on La Cienega is unavailing. Nothing contained in that opinion suggests that a copyright certificate, standing alone, is sufficient to demonstrate a publication that divests a work of its common-law copyright. To the contrary, the infringer in La Cienega relied on the general release of a phonorecord to the public in arguing that divestive publication had occurred. La Cienega, 53 F.3d at 953. Here, Agee did not introduce evidence demonstrating the nature and scope of the distribution of the Laurel & Hardy movies. As a result, the evidence is insufficient to establish the standard for publication set forth in American Vitagraph. See American Vitagraph, 659 F.2d at 1028 (“[Mjotion picture publication occurs when prints of a film are made available under a lease or similar arrangement to theatre operators for public exhibition.”) Nothing in La Cienega remedies this shortfall in the evidence. IV. The District Court Did Not Err in Finding Willful Infringement The district court found, pursuant to 17 U.S.C. § 504(e)(2), that Agee willfully infringed Dolman’s copyrights because he continued producing and marketing the “Music Box” records, and began importing the Beau Hunks records, despite knowing that someone owned the copyrights in the music, and being presented with evidence regarding Dolman’s claim of ownership. In the copyright infringement context, “willful” means acting “with knowledge that [one’s] conduct constitutes copyright infringement.” See Columbia Pictures Television v. Krypton Broadcasting of" }, { "docid": "8564236", "title": "", "text": "court to recalculate the fees once the copyright claim had been resolved. Subsequently, the district court granted Dastar’s motion for summary judgment and dismissed Twentieth Century Fox Parties’ unfair competition claim. With only the copyright claim remaining, the parties then submitted to a bench trial, during which the district court admitted hundreds of exhibits, including General Eisenhower’s correspondence, notes, and recorded recollections. Dástar did not call any witnesses at trial, relying solely on the documentary evidence submitted' and its cross-examination of Twentieth Century Fox Parties’ only witness, Samuel Vaughn, a Doubleday editor who worked closely with General Eisenhower. After entering lengthy findings of fact and conclusions of law, the district court determined that General Eisenhower’s book was created as a work-for-hire within the definition of the statute, and that Dastar’s video infringed the copyright to the book. Upon conclusion of the bench trial, the court again considered the issue of attorneys’ fees, and granted Twentieth Century Fox Parties’ motion. ' In its opinion, the district court incorporated by reference its earlier opinion awarding fees. In its new order, the district court held that for the same reasons' it had stated previously, Twentieth Century Fox Parties were still entitled to a fee award because they had prevailed. The district court ‘recalculated the lodestar fees from its December 2000 award based on expenses incurred in defending the summary judgment appeal and reduced the fees based on the subsequently dismissed Lanham Act claim.. Dastar appeals both the district court’s adverse judgment on Twentieth Century Fox Parties’ copyright infringement claim and the district court’s subsequent re-award of attorneys’ fees. We affirm. II We first consider Twentieth Century Fox Parties’ infringement claims under the now repealed Copyright Act of 1909, 17 U.S.C. § 1, 61 Stat. 652-61 (repealed 1976) (“1909 Act”), because Crusade in Europe was published before the January 1, 1978, effective date of the 1976 Copyright Act (“1976 Act”), 17 U.S.C. § 101. Dolman v. Agee, 157 F.3d 708, 712 n. 1 (9th Cir.1998). To demonstrate copyright infringement, the plaintiff must prove ownership of a valid copyright and copying of constituent elements of" }, { "docid": "22631498", "title": "", "text": "programs broadcast free over the airwaves. No issue is raised concerning cable or pay television, or the sharing or trading of tapes. At the trial, the Studios proved 32 individual instances where their copyrighted works were recorded on Betamax VTR’s. Two of these instances occurred after January 1, 1978, the primary effective date of the 1976 Act; all the others occurred while the 1909 Act was still effective. My analysis focuses primarily on the 1976 Act, but the principles governing copyright protection for these works are the same under either Act. Act of Feb. 3,1831, eh. 16, 4 Stat. 436; Act of July 8,1870, §§ 85-111,16 Stat. 212-217; Act of Mar. 4, 1909, 35 Stat. 1075 (formerly codified as 17 U. S. C. § 1 et seq.); Copyright Revision Act of 1976, 90 Stat. 2541 (codified as 17 U. S. C. § 101 et seq. (1982 ed.)). Section 102(a) provides: “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: “(1) literary works; “(2) musical works, including any accompanying words; “(3) dramatic works, including any accompanying music; “(4) pantomimes and choreographic works; “(5) pictorial, graphic, and sculptural works; “(6) motion pictures and other audiovisual works; and “(7) sound recordings.” Definitions of terms used in § 102(a)(6) are provided by § 101: “Audiovisual works” are “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together -with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” And “motion pictures” are “audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.” Most commercial television programs, if fixed on film or" }, { "docid": "11963493", "title": "", "text": "a phonorec-ord was distributed without a notice of copyright. Accordingly, on September 25, 1997 the district court granted summary judgment in favor of the Allsups. On October 9, 1997 Mayhew filed a motion to alter or amend the September 25 order. The district court denied that motion on November 21, 1997, and Mayhew filed a timely appeal in this court. II This court reviews de novo an order of the district court granting summary judgment. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir.1998). 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). This action is governed by the Copyright Act of 1909 (the “1909 Act”), which allowed a creator to “secure copyright for his work by publication thereof with the notice of copyright” affixed to each copy published. 17 U.S.C. § 10 (1909 Act). If a work was published without a valid copyright notice, however, the wmrk irretrievably entered the public domain. The 1909 Act did not define “publication,” and the courts have split on the proper definition. See 2 NimmeR on Copyright § 7.02[C][1]; La Cienega Music Co. v. ZZ Top, 53 F.3d 950, 952-53 (9th Cir.), cert. denied, 516 U.S. 927, 116 S.Ct. 331, 133 L.Ed.2d 231 (1995). Relying on a Supreme Court case that had determined that a player piano roll did not constitute a copy of the musical composition, see White-Smith Music Pub Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (1908), the Southern District of New York concluded that a phonorecord could not be a copy of a composition and, thus, that the distribution of phonorecords could not constitute publication. See Rosette v. Rainbo Record Mfg. Corp., 354 F.Supp. 1183, 1189 (S.D.N.Y.1973). The Second Circuit affirmed on the opinion of the district court. See Rosette v. Rainbo Record Mfg. Corp., 546 F.2d 461" }, { "docid": "8564237", "title": "", "text": "its new order, the district court held that for the same reasons' it had stated previously, Twentieth Century Fox Parties were still entitled to a fee award because they had prevailed. The district court ‘recalculated the lodestar fees from its December 2000 award based on expenses incurred in defending the summary judgment appeal and reduced the fees based on the subsequently dismissed Lanham Act claim.. Dastar appeals both the district court’s adverse judgment on Twentieth Century Fox Parties’ copyright infringement claim and the district court’s subsequent re-award of attorneys’ fees. We affirm. II We first consider Twentieth Century Fox Parties’ infringement claims under the now repealed Copyright Act of 1909, 17 U.S.C. § 1, 61 Stat. 652-61 (repealed 1976) (“1909 Act”), because Crusade in Europe was published before the January 1, 1978, effective date of the 1976 Copyright Act (“1976 Act”), 17 U.S.C. § 101. Dolman v. Agee, 157 F.3d 708, 712 n. 1 (9th Cir.1998). To demonstrate copyright infringement, the plaintiff must prove ownership of a valid copyright and copying of constituent elements of the work that are original. Walker v. University Books, Inc., 602 F.2d 859, 862 (9th Cir.1979). Dastar’s defense hinges on its attempt to demonstrate that Doubleday did not own a valid copyright in Crusade in Europe in 1995 because Doubleday’s purported attempt to renew the copyright in 1975 was ineffective. Section 24 of the 1909 Act provides that the initial copyright shall last for twenty-eight years. 1909 Act, 17 U.S.C. § 24. The proprietor of “any work copyrighted ... by an employer for whom such work is made for hire” is entitled to a renewal and extension of the copyright for an additional term of twenty-eight years if the employer makes the appropriate application for renewal within one year prior to the expiration of the copyright original term. Id. In the case of art not created as a work-for-hire, however, only the author may renew the copyright in the final year of the initial twenty-eight year period. Id. If the author is not alive during the one-year renewal period, then such right of renewal passes" }, { "docid": "4009875", "title": "", "text": "publication dates listed. Putting aside the district court’s concerns regarding the accuracy and completeness of this evidence, Agee is correct that we must afford the copyright registrations a presumption of validity. See Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446, 1451 (9th Cir.1991). Section 209 of the 1909 Act provides that a certificate of registration shall be prima facie evidence of the facts stated therein. Id. Thus, the certificates of registration for the subject motion pictures create a rebuttable presumption that the movies were published for purposes of investing statutory copyright on the dates listed. They do not, however, prove that the movies were “published,” under the American Vitagraph definition, to the extent that they divested the songs of their common-law copyrights. See American Vitagraph, 659 F.2d at 1027-28. Nonetheless, Agee argues that La Cienega requires us to hold that the “publication” of a motion picture also “publishes” the underlying musical compositions, with the compositions thereby losing their common-law copyright protection absent a separate copyright notice. In La Cienega, we held that a record is a “copy” of the work recorded, and that the underlying compositions on the record are therefore “published” at the time the recordings are sold to the public. La Cienega, 53 F.3d at 953. Thus, where a composer fails to satisfy the requirements of the 1909 Act, his compositions enter the public domain immediately upon sale of recordings to the public. Id. at 954. But see Rosette v. Rainbo Record Mfg. Corp., 354 F.Supp. 1183 (S.D.N.Y.1973), aff'd per curiam, 546 F.2d 461 (2d Cir.1976) (holding that a record is not a “copy” of a musical composition, and sale of a record is not a publication divesting the composer of his common-law copyright). Agee’s reliance on La Cienega is unavailing. Nothing contained in that opinion suggests that a copyright certificate, standing alone, is sufficient to demonstrate a publication that divests a work of its common-law copyright. To the contrary, the infringer in La Cienega relied on the general release of a phonorecord to the public in arguing that divestive publication" }, { "docid": "20791635", "title": "", "text": "S.Ct. at 323 (emphasis supplied). The Ninth Circuit in Corcoran v. Montgomery Ward & Co., 121 F.2d 572 (9 Cir. 1941) seems to have specifically extended the White-Smith rule to phonograph records. The Copyright Act was completely revised in 1909. The impact of the White-Smith case was limited by the statutory provision in the 1909 Act that “[c]opyright may also be had of the works of an author, of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production or a dramatic, musical, or dramatico-musical composition” (formerly Section 11 of the 1909 Act), 17 U.S.C. § 12. Thus, copyright protection was made available for unpublished musical compositions. And the sale of records of a musical composition registered under Section 11 of the Copyright Act will not terminate its copyright protection, Yacaubian v. Carroll, 74 U.S.P.Q. 257 (S. D.Cal.1947) against unauthorized phonograph records. Shilkret v. Musicraft Records, 131 F.2d 929 (2 Cir. 1942). But the Court of Appeals has not yet had occasion to consider the protection of unpublished musical compositions which rely on common law rights against unauthorized phonograph records. Section 2 of the Copyright Act recognizes the continued validity of common law rights in an “unpublished work” and confirms the right of an author to prevent “[the] use of such unpublished work.” The 1909 Act was a comprehensive revision of the Copyright Law. As we have seen, the Supreme Court in White-Smith had previously ruled that the recordation of a musical composition by mechanical means did not make the record (piano roll) a “copy” of the composition. The drafters of the 1909 Act stated that “it is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the .composer or copyright proprietor the control, in accordance with the provisions of the bill, of the manufacture and use of such devices.” House Reports, 60th Cong.2d Sess.Vol. 1 (1909), p. 9. The provisions of the bill referred to included the now" }, { "docid": "4009880", "title": "", "text": "The district court properly applied the 1909 Copyright Act to determine whether the songs created by Shield in the 1930s were \"works for hire” whose copyright presumptively vested in his employer. The 1909 Act is the applicable law in cases in which creation and publication of a work occurred before January 1, 1978, the effective date of the 1976 Act. See Magnuson, 85 F.3d at 1427. . Agee also argues that the district court misappropriated the burdens of proof on the works for hire issue. To the contrary, the trial transcript shows that district court was well aware that the Dolman bore the ultimate burden of proof to rebut any credible evidence that the songs were composed as works for hire. . Agee also cites Maljack Productions, Inc. v. GoodTimes Home Video Corp., 81 F.3d 881 (9th Cir.1996). This case is inapposite because the Maljack court was merely interpreting a contract between the parties as to ownership of synchronization rights. Moreover, the court explicitly stated that it was not deciding “whether the synchronization rights existed as part of the music copyrights, the movie copyrights, or indepen-dently_” Id. at 885 n. 3. . Because we hold that there was insufficient evidence of publication presented to the district court, we need not reach the still unsettled question of whether, under the 1909 Act, publication of a motion picture with the prescribed copyright notice provides copyright protection for the motion picture soundtrack and underlying musical compositions as \"component parts” of the copyrighted movie." } ]

[ { "docid": "22575851", "title": "", "text": "firearm during commission of the offenses, the BOL should be increased by two levels. See U.S.S.G. § 2Dl.l(b)(l). c) Because Ruiz abused the trust placed in him as a police officer and used that position to advance his criminal endeavors, the BOL should be increased by two more levels. See U.S.S.G. § 3B1.3. d) Because Ruiz testified falsely at trial, there should be a final two level increase for obstruction of justice. See U.S.S.G. § 3C1.1. Ruiz’s total offense level was, therefore, set at 38. Noting that Ruiz had no prior criminal history, the district court tabulated a guideline range of 235-293 months and sentenced Ruiz to 240 months. See U.S.S.G. Ch. 5, Part A; see generally United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.) (explaining methodology for calculating guideline range), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). Defendant contests two steps in the computation pavane. We approach his arguments mindful that we must both “accept the findings of fact of the district court unless they are clearly erroneous” and “give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e); see United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989); United States v. Paulino, 887 F.2d 358, 359 (1st Cir.1989). 2. The Firearm Enhancement. Ruiz challenges the district court’s elevation of the BOL pursuant to U.S.S.G. § 2D1.1(b)(1) because a firearm was possessed during commission of the drug offense. The Sentencing Commission has advised judges to make the adjustment if a firearm or other dangerous weapon was present during the crime’s commission “unless it is clearly improbable that the weapon was connected with the offense.” Id. (commentary). We, and other courts, have accepted that advice according to its tenor. See, e.g., Mocciola, 891 F.2d at 17; Paulino, 887 F.2d at 360; United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). In this case, Ruiz argues that the connection between weapon and offense was far too tenuous since he lawfully carried the firearm incidental to his vocation as a police officer rather than as" } ]

[ { "docid": "22216117", "title": "", "text": "his probation was revoked in July of 2007, suggesting that his sentence was probation, not incarceration. Furthermore, it is within the discretion of the district court to credit the testimony of these witnesses who discussed his involvement in the drug trade. United States v. Falesbork, 5 F.3d 715, 722 (4th Cir.1993) (district court has broad discretion at sentencing to weigh credibility). It was not plain error for the district court to believe witnesses over Slade’s word by, for example, believing that the transactions occurred during the periods of 2006 when Slade was not incarcerated. Finally, if the transactions were facilitated for Slade on behalf of his co-conspirators, he is liable as if he had sold them himself. B. Slade next argues that the district court improperly applied the two-level enhancement for possession of a firearm. Under § 2D1.1(b)(1), a district court must increase the defendant’s offense level two levels “[i]f a dangerous weapon (including a firearm) was possessed.” U.S. Sentencing Guidelines Manual, § 2Dl.1(b)(1) (2004). In order to prove that a weapon was present, the Government “need show only that the weapon was possessed during the relevant illegal drug activity.” United States v. McAllister, 272 F.3d 228, 233-34 (4th Cir.2001) (citing United States v. Harris, 128 F.3d 850, 852 (4th Cir.1997)). “We review findings of fact relating to sentencing enhancements for clear error.” Id. Under this standard of review, this Court will only reverse if left with the “definite and firm conviction that a mistake has been committed.” United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir.2008) (internal quotations omitted). The enhancement “reflects the increased danger of violence when drug traffickers possess weapons” and' should be applied “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” USSG § 2Dl.l(b)(l), cmt. n. 3. The enhancement is proper when “the weapon was possessed in connection with drug activity that was part of the same course of conduct or common scheme as the offense of conviction,” United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir.2010) (internal quotation marks omitted), even in the" }, { "docid": "9847598", "title": "", "text": "Appli cation Note 3 and call for the two level increase. We begin our analysis with a brief review of the basic principles underlying the application of the dangerous weapon enhancement. For the enhancement to be warranted, a certain nexus between the weapon and the offense must be shown. See United States v. Pineda, 981 F.2d 569, 573 *(lst Cir.1992). It need not be shown, however, that the weapon was used, or was intended to be used, to perpetrate the drug offense. United States v. Castillo, 979 F.2d 8, 10 (1st Cir.1992); see also, United States v. Ruiz, 905 F.2d 499, 507 (1st Cir.1990). Rather, for the purposes of the enhancement, we have repeatedly recognized that “when the weapon’s location makes it readily available to protect either the participants themselves during the commission of the illegal activity or the drugs and cash involved in the drug business, there will be sufficient evidence to connect the weapons to the offense conduct.” United States v. Ovalle-Marquez, 36 F.3d 212, 224 (1st Cir.1994) (quoting United States v. Corcimiglia, 967 F.2d 724, 727 (1st Cir.1992)), cert. denied, - U.S.-, 115 S.Ct. 947, 130 L.Ed.2d 891, - U.S. -, 115 S.Ct. 1322, 131 L.Ed.2d 202 (1995). In other words, the presence of a dangerous weapon at some point during the underlying drug crime may indicate the probability of a “facilitative nexus between the [weapon] and the crime.” United States v. Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir.1994). Once the presence of a weapon is established, the defendant may avoid the enhancement only by demonstrating “special circumstances” rendering it “clearly improbable” that the weapon was connected to the drug trafficking offense. Ovalle-Marquez, 36 F.3d at 224. An example of a “special circumstance” is provided by the guideline commentary: “the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.” U.S.S.G. § 2D1.1, comment. (n.3). Here, the district court’s factual findings are unassailable and Lagasse does not challenge them on appeal: during the indictment period, Lagasse was involved in the robbing of a coconspirator, at knife point," }, { "docid": "2890714", "title": "", "text": "of Snyder’s residence on November 22, 1988, Count II (possession of a firearm by a former felon) was correctly categorized as a specific offense characteristic of the cocaine conviction (Count I). See United States v. Whyte, 892 F.2d 1170, 1171-72 (3d Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990). See also Guidelines §§ 2K2.1 (“Receipt, Possession, or Transportation of Firearms and Other Weapons by Prohibited Persons”); 3D1.2 (“Groups of Closely-Related Counts”) and 3D1.3 (“Offense Level Applicable to Each Group of Closely-Related Counts”). B. Section 2Dl.l(b)(l) of the Federal Sentencing Guidelines provides that a defendant’s base offense level be increased two levels for possession of a firearm during the commission of a drug offense governed by Chapter 2, Part D (“Offenses Involving Drugs”) of the Sentencing Guidelines. Snyder argues that the mere presence of firearms in his bedroom nightstand does not rise to the level of “possession] during commission of the offense” as contemplated by Guidelines § 2D1.1(b)(1). Specifically, Snyder maintains that application note 3 to section 2D 1.1(b)(1) precludes a two-level enhancement in his ease. Application note 3 provides: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. United States Sentencing Commission, Guidelines Manual, § 2D1.1, comment, (n. 3) (Nov.1989). Essentially arguing that his two handguns “are more akin to a confined and unloaded hunting rifle rather than a drug-trafficker’s arsenal,” United States v. Franklin, 896 F.2d 1063, 1065 (7th Cir. 1990), Snyder maintains that it was “clearly improbable” that the handguns discovered during the search of his residence were connected to his drug offense. Though Snyder argues that he never used the handguns during his criminal activities, the government need only show Snyder’s constructive possession of the firearms to warrant a section 2D 1.1(b) adjustment. United States v. Luster, 896 F.2d 1122," }, { "docid": "14802108", "title": "", "text": "guidelines regime, computation of the guideline sentencing range remains the starting point for sentencing. See United States v. Dixon, 449 F.3d 194, 203-04 (1st Cir.2006); Jiménez-Beltre, 440 F.3d at 518-19. Accordingly, the sentencing court is still obliged to calculate the GSR—and calculate it correctly. 1. The Weapons Enhancement. We begin with the weapons enhancement. Gobbi argues that the district court violated his Fifth and Sixth Amendment rights by applying this enhancement. Since the jury acquitted him on counts 3 and 5—the counts that charged Gobbi, under 18 U.S.C. § 924(c), with possession of a handgun in furtherance of drug-protection details—he asserts that a sentencing enhancement for the same alleged conduct is impermissible. In Gobbi’s view, where conduct constitutes a distinct offense, actually charged as a separate crime and rejected by the jury, that conduct cannot bear the weight of a sentencing enhancement. The sentencing guidelines provide that a two-level enhancement is proper if “a dangerous weapon (including a firearm) was possessed” in the course of the offense. USSG § 2Dl.l(b)(l). This provision is applicable whether the weapon is possessed by the defendant himself or by one of his coconspirators. See United States v. Orbiz-Torres, 449 F.3d 61, 77-79 (1st Cir.2006); see also USSG § 1B1.3 (specifying that “all reasonably foreseeable acts” by a defendant’s confederates that are “in furtherance of the jointly undertaken criminal activity” may be attributed to the defendant for sentencing purposes as relevant conduct). The enhancement should attach if the weapon was present during the commission of the crime “unless it is clearly improbable that the weapon was connected with the offense.” USSG § 2D1.1 cmt. n. 3. It is true that the jury acquitted Gobbi of possession of a weapon in viola tion of 18 U.S.C. § 924(c). Nevertheless, the pre-Booker case law made plain that acquitted conduct, proved to the sentencing court by a preponderance of the evidence, may form the basis of a sentencing enhancement. See, e.g., United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); United States v. Caba, 241 F.3d 98, 101 (1st Cir.2001). Post-Booker, the" }, { "docid": "17655042", "title": "", "text": "the government’s discretionary decision not to file a section 5K1.1 motion is, as in Wade, reviewable only for an unconstitutional motive or the lack of a rational relationship to any legitimate governmental objective. In this case, there is no hint of either such condition, so we cannot consider the propriety of the government’s omission. Ill We need not tarry over the appellant’s remaining claim of error. The district court increased the appellant’s aggregate offense level (and, therefore, the applicable GSR) because the authorities found a firearm in his possession under circumstances that suggested a relationship between the firearm and the appellant’s criminal activities. See USSG § 2D1.1(b)(1) (providing for a two-level en hancement “[i]f a dangerous weapon (including a firearm) was possessed”). The Sentencing Commission has specifically instructed courts to apply this enhancement “unless it is clearly improbable that the weapon was connected with the offense.” USSG § 2D1.1(b)(1), comment, (n.3). The defendant must carry the devoir of persuasion on this issue and thus must convince the trier to credit his innocent explanation. See United States v. Aker, 181 F.3d 167, 172 (1st Cir.1999). In this instance, Sandoval explained to the sentencing court that he had purchased the weapon for personal protection and not for any drug-related shenanigans. Judge Lagueux flatly rejected this testimony, instead finding that the presence of the weapon in the same bureau drawer as the cocaine stash demonstrated a culpable connection between the two. Absent a mistake of law (and we see none here), we review the district court’s factfinding at sentencing only for clear error. See United States v. Ruiz, 905 F.2d 499, 507 (1st Cir.1990). This standard requires that we defer broadly to the court’s credibility determinations. See United States v. McDonald, 121 F.3d 7, 9 (1st Cir.1997); Ruiz, 905 F.2d at 507. Under this framework, we have no principled choice but to uphold the enhancement. After all, when a firearm’s location indicates a link between it and the possessor’s drug business, the evidence ordinarily will be deemed sufficient to support the enhancement. See, e.g., United States v. Gonzalez-Vazquez, 34 F.3d 19, 24 (1st" }, { "docid": "13236571", "title": "", "text": "clearly erroneous. See United States v. Hill, 79 F.3d 1477, 1481 (6th Cir.1996) (declaring that the district court’s factual findings will be upheld unless they are clearly erroneous). The district court was therefore correct in assigning Culliver a base offense level of 28, because he was responsible for over 20 grams of cocaine base under § 2D1.1(c)(6) of the United States Sentencing Guidelines. G. The district court did not err in sentencing Culliver for possessing a firearm in connection with a drug-trafficking offense Culliver also challenges the district court’s determination that Culliver’s base offense level should be increased pursuant to § 2Dl.l(b)(l) of the United States Sentencing Guidelines. This Guideline calls for a two-level increase “[i]f a dangerous weapon (including a firearm) was possessed” during the unlawful manufacturing, importing, exporting, or trafficking of a controlled substance. Application note 3 further states that the § 2D1.1(b)(1) adjustment “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense .” United States Sentencing Guidelines Manual § 2D1.1 cmt. n. 3. Culliver argues that because he was in Florida, the weapon was not present at the location where he was committing the offense. For a court to impose a sentence enhancement under § 2D1.1(b)(1), “the government must establish that (1) the defendant actually or constructively ‘possessed’ the weapon, and (2) such possession was during the commission of the offense.” Hill, 79 F.3d at 1485. Constructive possession of a firearm occurs when the defendant has the ownership, or dominion or control over the item itself, or dominion over the premises where the item is located.... Once it is established that a defendant was in possession of a weapon during the commission of an offense, a presumption arises that such possession was connected to the offense.... The burden then shifts to the defendant to show that it is clearly improbable that the weapon was connected to the offense. Id. (citing United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991)) (internal quotation marks omitted). We will uphold the district court’s factual findings unless they are" }, { "docid": "23231860", "title": "", "text": "interstate or foreign commerce. At the close of the government’s proofs, Moore moved for a judgment of acquittal, which was denied by the district court. At the close of the proofs, the jury found Moore guilty of the charge of being a felon in possession of a firearm. DISCUSSION Miggins’ Appeal I. Miggins first argues that at sentencing the district court erred in applying the two-level increase to his sentence under USSG § 2D1.1(b)(1) for possession of a firearm. We review a district court’s factual findings under USSG § 2Dl.l(b)(l) for clear error. United States v. Williams, 176 F.3d 301, 307 (6th Cir.1999). A district court’s legal conclusions'regarding the application of the sentencing guidelines are reviewed de novo. United States v. Saikaly, 207 F.3d 363, 367 (6th Cir.2000). USSG § 2D1.1(b)(1) provides for a two-level increase to the base offense level for a person convicted of certain drug trafficking offenses “[i]f a dangerous weapon (including a firearm) was possessed.” Note 3 to the commentary section of USSG § 2D1.1(b)(1) states in pertinent part: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.... USSG § 2D1.1(b)(1), n. 3. To enhance a sentence under. USSG § 2Dl.l(b)(l), the government must show by a preponder- anee of the evidence that the defendant possessed the firearm during the drug trafficking offense. United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991). Once the government satisfies its burden, “a presumption arises that such possession was connected to the offense.” Id. Possession may be actual or constructive. United States v. Cochran, 14 F.3d 1128, 1132 (6th Cir.1994). To establish constructive possession, the government must show that the defendant had “ ‘ownership, dominion, or control’ over the [firearm] or ‘dominion over the premises’ where the [firearm] is located.” Id. (quoting United States v. Snyder," }, { "docid": "22071221", "title": "", "text": "further maintains that the enhancement is improper where, as here, the firearms are unloaded. We disagree and hold that the Section 2D1.1(b)(1) enhancement in this case was not clear error. See United States v. Rusher, 966 F.2d 868, 880 (4th Cir.1992) (reviewing § 2D1.1(b)(1) enhancement for clear error). The Sentencing Commission recognized that drugs and guns form a lethal combination that can lead to violence. Section 2D1.1(b)(1) reflects this recognition by providing a two level increase in a defendant’s base offense level when the defendant “possessed” a dangerous weapon during commission of a narcotics offense. Application Note 3 explains that this “enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons.” U.S.S.G. § 2D1.1 Application Note 3 (1995). The Application Notes to Section 2D1.1 further direct that the “adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. We accept the Application Notes as authoritative unless they are inconsistent with the Constitution, a federal statute, or a plain reading of the Guidelines. Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993); United States v. Hunter, 19 F.3d 895, 896 (4th Cir.1994). Our decisions strongly support the proposition that the proximity of narcotics to weapons is sufficient to warrant a Section 2D1.1(b)(1) enhancement. An enhancement under Section 2Dl.l(b)(l) doés not “require[ ] proof of precisely concurrent acts, for example, gun in hand while in the act of storing drugs, drugs in hand while in the act of retrieving a gun.” United States v. Johnson, 943 F.2d 383, 386 (4th Cir.1991) (per curiam). Instead, “possession of the weapon during the commission of the offense is all that is needed to invoke the enhancement.” United States v. Apple, 962 F.2d 335, 338 (4th Cir.1992) (Apple II). In Rusher, we held that possession had been established where a gun and drugs were located in the same briefcase. 966 F.2d at 880. Similarly, in United States v. Nelson, we approved an enhancement when the guns and drugs were located in" }, { "docid": "23168743", "title": "", "text": "Covert. Here, the district court applied the four level base offense enhancement pursuant to § 2K2.1(b)(5), because the defendant, the cocaine, and the gun, were all present in the same room. We reiterate that Defendant had pleaded guilty to both possession with intent to distribute that cocaine, and possession of that gun at the same time, in the same room. The instant facts support application of the enhancement. In its Order, issued after the sentencing hearing, the district court erroneously referred to United States v. Hill, 79 F.3d 1477 (6th Cir.1996), as setting forth the test for determining the applicability of the instant enhancement: According to the teachings of United States v. Hill, 79 F.3d 1477 (6th Cir.1996), the government must establish that the defendant actually or constructively possessed the weapon and that such possession was during the commission of the offense. Once that has been established, the burden shifts to the defendant to show that it is “clearly improbable” that the weapon was connected to the offense. In fact, Hill did not deal with the instant situation — consideration of the § 2K2.1(b)(5) enhancement of a gun conviction in connection with the felonious possession of narcotics. Hill dealt with a different Guideline provision, § 2D1.1, that provides for an enhancement of a narcotics conviction offense level for firearm possession. More significant to this discussion is the fact that § 2D1.1 applies a burden-shifting component that is not present in § 2K2.1(b)(5). Guideline § 2Dl.l(b)(l) provides for a two level increase in the offense level “if a dangerous weapon (including a firearm) was possessed ...” during the commission of a felony drug offense. Application Note 3, located in the Commentary to § 2D1.1 states, in pertinent part: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is dearly improbable that the weapon was con nected with this offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet." }, { "docid": "5263728", "title": "", "text": "905 F.2d 499, 507 (1st Cir.1990); United States v. Mocciola, 891 F.2d 13, 16 (1st Cir.1989). In the case at hand, the district court’s factfinding survives clear-error review. This conclusion is reached more easily because of the Sentencing Commission’s specific instruction that section 2D1.1(b)(1) “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2Dl.l(b)(l), comment. A sentencing court must, of course, honor this type of instruction. See, e.g., United States v. Fiore, 983 F.2d 1, 2 (1st Cir.1992) (explaining that the Sentencing Commission’s interpretation of a guideline should be followed unless it is “arbitrary, unreasonable, inconsistent with the guideline’s text, or contrary to law”), cert. denied, — U.S. -, 113 S.Ct. 1830, 123 L.Ed.2d 458 (1993). Here, the record supports a finding that appellant served as a bodyguard while one of his coconspirators negotiated the terms of a proposed narcotics transaction with a confidential informant. It likewise supports a finding that appellant carried a pistol during the encounter. Under these circumstances, we must uphold the district court’s conclusion that, on the date of appellant’s arrest, he possessed a firearm in the course of an aborted drug transaction. Appellant tries to stave off the near-irresistible force of these findings in two ways. First, he suggests that, to warrant an adjustment under U.S.S.G. § 2Dl.l(b)(l), the evidence must establish the same panoply of elements that are needed to prove the statutory “carrying and use” of a weapon in furtherance of a drug crime, see 18 U.S.C. § 924(c)(1). The suggestion is fanciful, for the guideline can be triggered with considerably greater ease. The point is readily susceptible to illustration. For one thing, while mere possession of a firearm during a drug-trafficking episode does not satisfy the elements of the statute, see United States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993), the reverse is often true under the guideline, see, e.g., Ruiz, 905 F.2d at 507 (“Mere possession of a firearm can trigger the two level" }, { "docid": "22127279", "title": "", "text": "leader of the conspiracy. Larry argues that because Peoples was the only individual he could have arguably led or directed, he was not leading five individuals. It is not necessary, however, for a defendant to have led or directed five individuals to receive this sentencing enhancement. It may apply “[i]f the defendant organized or led at least one participant, and if the activity involved five or more people or was otherwise extensive.” Ward, 68 F.3d at 151. In this case, the drug conspiracy involved more than five participants, including Owusu, Larry, Anthony, McGraw, Peoples, and Broomfield. Because Larry was an organizer or leader of a conspiracy involving more than five individuals, the district court did not err in concluding that Larry’s offense level should be increased by four levels under U.S.S.G. § 3Bl.l(a). 4. Possession of a Firearm We review a district court’s factual finding of possession of a firearm for enhancement of a defendant’s sentence under U.S.S.G. § 2Dl.l(b)(l) for clear error. See United States v. Elder, 90 F.3d 1110, 1133 (6th Cir.), cert. denied, 519 U.S. 1016, 117 S.Ct. 529, 136 L.Ed.2d 415 (1996). The Sentencing Guidelines provide that the base offense level of a defendant convicted of a drug offense should be increased by two levels “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 201.1(b)(1). This enhancement “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1 commentary, applic. note 3. The government must prove by a preponderance of the evidence that “(1) the defendant actually or constructively ‘possessed’ the weapon, and (2) such possession was during the commission of the offense.” United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.), cert. denied, 519 U.S. 858, 117 S.Ct. 158, 136 L.Ed.2d 102 (1996). Constructive possession may be established if the defendant has ownership, dominion, or control over the weapon. See id. If the offense committed is part of a conspiracy, however, the government does not have to prove that the defendant actually possessed the weapon, but instead may establish" }, { "docid": "22808094", "title": "", "text": "warrants at each defendant’s residence. The police seized 8.52 grams of crack cocaine, a .22 caliber handgun, and a 7 mm magnum rifle found at Lopez-Sandoval’s residence. The .22 caliber handgun was found between a mattress and box spring in the master bedroom. A box of ammunition and several identification cards for Lopez-Sandoval also were found between the mattress and the box spring. From Gonzalez’s residence, the police seized cocaine, heroin, marijuana, and two handguns. I. Firearm Enhancement A. Standard of Review We review a district court’s interpretation of the Sentencing Guidelines de novo. See United States v. Parrilla, 114 F.3d 124, 126 (9th Cir.1997). “We review the district court’s finding that [a defendant] possessed firearms in connection with a drug conspiracy for clear error.” United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir.1997). B. Section 2Dl.l(b)(l) Sentencing Guideline § 2Dl.l(b)(l) provides: “If a dangerous weapon (including a firearm) was possessed [during a drug-trafficking crime], increase by 2 levels.” Application Note 3 to § 2D1.1 explains: “The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons.” In applying this enhancement, “the court need not find a connection between the firearm and the offense. If it finds that the defendant possessed the weapon during the commission of the offense, the enhancement is appropriate.” United States v. Diego Restrepo, 884 F.2d 1294, 1296 (9th Cir.1989). But the adjustment will not be applied if it is “clearly improbable that the weapon was connected with the offense.” See U.S.S.G. § 2D1.1, Commentary (n.3); United States v. Willard, 919 F.2d 606, 609 (9th Cir.1990). 1. Possession of the Weapon Defendants contend that the district court erred in finding that they “possessed” weapons during the commission of the drug offense because neither of them was carrying a weapon when they were arrested. But, for the enhancement to apply, a defendant need not be carrying a weapon when he is arrested. In United States v. Willard, the defendant was arrested in his car without any weapons, but the police later found thirty-one firearms at his place of business. The defendant" }, { "docid": "22613410", "title": "", "text": "waiver contention interposed by the Government must be rejected. Having declined to dismiss Manigan’s appeal on the basis of the Government’s waiver contention, we must turn to the merits of his appeal — the issue of whether the district court erred when it increased his offense level by applying the weapon enhancement. B. 1. Section 2D1.1 of the Sentencing Guidelines establishes the base offense level for narcotics offenses, including the 21 U.S.C. § 841(a)(1) offense on which Manigan was thrice convicted. See USSG § 2Dl.l(a). Subsection (b) of section 2D1.1 identifies several “Specific Offense Characteristics” that, when applicable, warrant an offense-level enhancement. See id. § 2Dl.l(b). The specific offense characteristic implicated in this appeal provides that, “[i]f a dangerous weapon (including a firearm) was possessed,” the sentencing court is to “increase by 2 levels” the offense level. Id. § 2Dl.l(b)(l). The relevant Application Notes provide that the weapon enhancement “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” USSG § 2D1.1 cmt. n. 3. As Judge Wilkins explained, the Government must prove by a preponderance of the evidence that “the weapon was possessed in connection with drug activity that was part of the same course of conduct or common scheme as the offense of conviction.” United States v. McAllister, 272 F.3d 228, 233-34 (4th Cir.2001) (internal quotation marks omitted). To satisfy that burden, however, the Government does not need to prove “precisely concurrent acts,” such as a “gun in hand while in the act of storing drugs.” United States v. Johnson, 943 F.2d 383, 386 (4th Cir.1991). Rather, proof of constructive possession of the dangerous weapon is sufficient, and the Government is entitled to rely on circumstantial evidence to carry its burden. See United States v. Miggins, 302 F.3d 384, 391 (6th Cir.2002); United States v. Hall, 46 F.3d 62, 64 (11th Cir.1995). In assessing whether a defendant possessed a firearm in connection with relevant drug activity, a sentencing court is entitled to consider several pertinent factors. One important factor is the type of firearm involved. See United" }, { "docid": "23458269", "title": "", "text": "us regarding Behler’s role in the offense or obstruction of justice. Additionally, our prior opinion limited the scope of the remand. We expressly stated that we were provisionally vacating the drug convictions for one purpose: “so that the district court may consider whether Behler’s sentence on the drug counts should be enhanced under USSG § 2Dl.l(b)(l) (Oct.1987).” Behler II, 100 F.3d at 640. The district court correctly interpreted our prior opinion and properly limited the scope of Behler’s re-sentencing by considering only whether the drug counts should be enhanced due to Behler’s possession of a firearm. In light of the law of the case and the limited language of our prior opinion, we decline to consider Behler’s arguments relating to the propriety of enhancements based on his role in the offense or obstruction of justice. B. Behler argues that the district court erred in assessing a two-level sentencing enhancement pursuant to USSG § 2D1.1(b)(1). Basically, Behler contends that the government’s witnesses were not credible and that the government failed to prove a nexus between his possession of a firearm and his drug activities. The district court’s assessment of credibility, however, is virtually unreviewable, see United States v. Phelps, 168 F.3d 1048, 1057 (8th Cir.1999), and we review for clear error the district court’s finding that a weapon was sufficiently connected to the offense for purposes of USSG § 2Dl.l(b)(l). See United States v. Belitz, 141 F.3d 815, 817 (8th Cir.1998). Section 2D1.1(b)(1) mandates a two-level increase to a defendant’s base offense level if the defendant possessed a firearm or other dangerous weapon during the commission of the offense. Sentencing courts are required to apply this adjustment if a weapon was present, “unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.” USSG § 2Dl.l(b)(l), comment, (n. 3) (Oct.1987). Thus, we will sustain an enhancement pursuant to this specific offense characteristic if the government shows first “that the weapon was present and second, that it" }, { "docid": "6755501", "title": "", "text": "was merely part of his uniform, and, therefore, Guideline 2Dl.l(b)(l) did not justify an increase in the offense level. The court rejected this argument. 2. The Firearm Enhancement. Ruiz challenges the district court’s elevation of the BOL pursuant to U.S.S.G. § 2Dl.l(b)(l) because a firearm was possessed during commission of the drug offense. The Sentencing Commission has advised judges to make the adjustment if a firearm or other dangerous weapon was present during the crime’s commission “unless it is clearly improbable that the weapon was connected with the offense. ” Id. (commentary). We, and other courts, have accepted that advice according to its tenor. See, e.g., [United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989) ]; United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). In this case, Ruiz argues that the connection between the weapon and the offense was far too tenuous since he lawfully carried the firearm incidental to his vocation as a police officer rather than as a means of facilitating his avocation as a criminal. We cannot say the district court’s finding in this respect was clearly wrong. Mere possession of a firearm can trigger the two level increase; there is no requirement that the gun actually be used in perpetrating the drug crime, or that such use be intended. See, e.g., United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (increase upheld when unloaded handgun discovered in apartment where defendant conducted drug transactions); United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) (so long as possession proven, no requirement to prove that defendant would have used weapon to advance commission of drug offense); [United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) ] (same; pistol was in bureau drawer in room where cocaine concealed); United States v. Restrepo, 884 F.2d 1294, 1295-1296 (9th Cir.1989) (same; automatic pistol hidden in mattress in stash house); United States v. Holland, 884 F.2d 354 (8th Cir.) (same; pistol found in briefcase along with drug paraphernalia), cert. denied, — U.S. —, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States v. Hewin, 877 F.2d 3, 5" }, { "docid": "16576667", "title": "", "text": "during his drug trafficking offense and that Greeno had failed to produce any evidence demonstrating that it was clearly improbable that the weapon was connected to his offense. Thus, the court overruled Greeno’s objection to the Section 2D1.1(b)(1) dangerous weapon enhancement and sentenced him to 87 months in prison. Greeno filed a timely notice of appeal on October 19, 2010, following entry of judgment on October 14, 2010. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. II. Greeno contends in this appeal that the district court erred by applying the Section 2D1.1(b)(1) dangerous weapon enhancement to his sentence because the Government did not present sufficient evidence to show that Greeno possessed a firearm in connection with his drug trafficking offense. He also maintains that the application of this enhancement violates his Second Amendment right to keep and bear arms. This Circuit reviews a district court’s interpretation of the Sentencing Guidelines de novo and its “findings of fact at sentencing for clear error.” United States v. Baker, 559 F.3d 443, 448 (6th Cir.2009). A. Pursuant to Section 2Dl.l(b)(l), a two-level enhancement may be added to the base offense level of a defendant convicted of a drug offense “[i]f a dangerous weapon (including a firearm) was possessed.” U.S. Sentencing Guidelines Manual § 2Dl.l(b)(l) [hereinafter Sentencing Guidelines]. “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. § 2D1.1 cmt. n.3(A). Under Section 2Dl.1(b)(1), the government has the burden of showing “by a preponderance of the evidence that ‘(1) the defendant actually or constructively “possessed” the weapon, and (2) such possession was during the commission of the offense.’ ” United States v. Catalan, 499 F.3d 604, 606 (6th Cir.2007) (quoting United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996)). This Court has previously recognized that the 1991 amendments to the Sentencing Guidelines removed the requirement that the weapon be possessed during the commission of the crime. United States v. Faison, 339 F.3d 518, 520 (6th Cir.2003). “[A]ll that" }, { "docid": "16576668", "title": "", "text": "Baker, 559 F.3d 443, 448 (6th Cir.2009). A. Pursuant to Section 2Dl.l(b)(l), a two-level enhancement may be added to the base offense level of a defendant convicted of a drug offense “[i]f a dangerous weapon (including a firearm) was possessed.” U.S. Sentencing Guidelines Manual § 2Dl.l(b)(l) [hereinafter Sentencing Guidelines]. “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. § 2D1.1 cmt. n.3(A). Under Section 2Dl.1(b)(1), the government has the burden of showing “by a preponderance of the evidence that ‘(1) the defendant actually or constructively “possessed” the weapon, and (2) such possession was during the commission of the offense.’ ” United States v. Catalan, 499 F.3d 604, 606 (6th Cir.2007) (quoting United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996)). This Court has previously recognized that the 1991 amendments to the Sentencing Guidelines removed the requirement that the weapon be possessed during the commission of the crime. United States v. Faison, 339 F.3d 518, 520 (6th Cir.2003). “[A]ll that the government need show is that the dangerous weapon [was] possessed during ‘relevant conduct.’ ” Id. This Court has also recognized that although the Government’s burden contains “two separate inquiries, in most instances they collapse into a single factual determination because the weapon was present when the arrest took place or where the crime was committed.” United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991), abrogated on other grounds by United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir.2002). In such “instances, once the government proves a defendant was in possession of a weapon, its burden is satisfied.” Id. Once the government meets its burden, “a [rebuttable] presumption arises that ‘the weapon was connected to the offense.’ ” United States v. Wheaton, 517 F.3d 350, 367 (6th Cir.2008) (quoting United States v. Hough, 276 F.3d 884, 894 (6th Cir.2002)). The burden then “shifts to the defendant to show that it was ‘clearly improbable’ that the weapon was connected to the offense.” Catalan, 499 F.3d at 606. A defendant must present evidence, not mere argument," }, { "docid": "4158926", "title": "", "text": "by a preponderance of the evidence. United States v. Vold, 66 F.3d 915, 920 (7th Cir.1995); United States v. Mumford, 25 F.3d 461, 465 (7th Cir.1994). We review a district court’s factual determination to enhance a sentence under § 2Dl.l(b)(l) for clear error only. See, e.g., United States v. Berchiolly, 67 F.3d 634, 640 (7th Cir.1995); United States v. Covarrubias, 65 F.3d 1362, 1370 (7th Cir.1995). Sentencing Guideline § 2Dl.l(b)(l) provides for a two-level enhancement of a defendant’s base offense level “[i]f a dangerous weapon (including a firearm) was possessed.” Application Note Three to Guideline § 2D1.1 states that “[t]he enhancement for weapon possession reflects the increased danger for violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected to the offense.” The government, therefore, is not required to demonstrate a connection between the weapon and the offense. See, e.g., United States v. Montgomery, 14 F.3d 1189, 1199 (7th Cir.1994); United States v. Cantero, 995 F.2d 1407, 1410 (7th Cir.1993). Rather, the government need only prove that the weapon was possessed during the offense of conviction or during related “relevant conduct,” as defined in U.S.S.G. § 1B1.3. See, e.g., United States v. Anderson, 61 F.3d 1290, 1303-04 (7th Cir.), cert. denied, — U.S. -, 116 S.Ct. 543, 133 L.Ed. 2d 446 (1995); Mumford, 25 F.3d at 468-69. Wetwattana confusingly maintains that he did not actually possess the handgun contained in the sealed tissue box, arguing that the gun was inaccessible to him. We note, however, that § 2Dl.l(b)(l) does not require actual possession of the weapon by the defendant. Covarrubias, 65 F.3d at 1371; Cantero, 995 F.2d at 1410. Constructive possession of the firearm is also “sufficient to trigger the enhancement.” Covarmbias, 65 F.3d at 1371. Possession of an object, whether actual or constructive, exists when a person exercises control over the object. See United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990). The evidence in this case clearly shows that" }, { "docid": "22195705", "title": "", "text": "OF FIREARMS AND DOWNWARD DEPARTURE FOR EXCEPTIONAL CIRCUMSTANCES . Rossell, Mrs. Benford, and Stewart contend that the district court erred in enhancing their sentences by two points pursuant to USSG § 2D1.1 for possession of a firearm during the commission of their crimes. Rossell also argues that the district court erred in determining that he was not eligible for the safety valve provision of USSG § 5C1.2(2) and in failing to depart downward due to the exceptional circumstances surrounding his case. For the reasons explained below, we reject each of these arguments. A. “A district court’s finding that a defendant possessed a firearm during a drug crime is a factual finding subject to the clearly erroneous standard of review.” United States v. Elder, 90 F.3d 1110, 1133 (6th Cir.1996) (citations omitted). The Sentencing Guidelines provide that the base offense level of a defendant convicted of a drug offense should be increased by two levels “[i]f a dangerous weapon (including a firearm) was possessed.” United States v. Owusu, 199 F.3d 329, 347 (6th Cir.2000) (citing USSG § 2Dl.l(b)(l)). To apply the enhancement, the government must establish that (1) the defendant actually or constructively “possessed” the weapon; and (2) that such possession was during the commission of the offense. United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.), cert. denied, 519 U.S. 858, 117 S.Ct. 158, 136 L.Ed.2d 102 (1996). “Once it is established that a defendant was in possession of a weapon during the commission of an offense, a presumption arises that such possession was connected to the offense.” Id. The burden then shifts to the defendant to show that “it was clearly improbable that the weapon was connected to the offense.” Id. (citing USSG § 2D1.1, comment, (n.3)). “Constructive possession of an item is the ‘ownership, or dominion or control’ over the item itself, ‘or dominion over the premises’ where the item is located.” Id. (citation omitted). “If the offense committed is part of a conspiracy, however, the government does not have to prove that the defendant actually possessed the weapon, but instead may establish that a member of" }, { "docid": "9847599", "title": "", "text": "967 F.2d 724, 727 (1st Cir.1992)), cert. denied, - U.S.-, 115 S.Ct. 947, 130 L.Ed.2d 891, - U.S. -, 115 S.Ct. 1322, 131 L.Ed.2d 202 (1995). In other words, the presence of a dangerous weapon at some point during the underlying drug crime may indicate the probability of a “facilitative nexus between the [weapon] and the crime.” United States v. Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir.1994). Once the presence of a weapon is established, the defendant may avoid the enhancement only by demonstrating “special circumstances” rendering it “clearly improbable” that the weapon was connected to the drug trafficking offense. Ovalle-Marquez, 36 F.3d at 224. An example of a “special circumstance” is provided by the guideline commentary: “the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.” U.S.S.G. § 2D1.1, comment. (n.3). Here, the district court’s factual findings are unassailable and Lagasse does not challenge them on appeal: during the indictment period, Lagasse was involved in the robbing of a coconspirator, at knife point, of drugs and money. What the parties do dispute is the district court’s application of the guidelines to these facts. While we give “due deference” to the court’s exercise in this regard, 18 U.S.C. § 3742(e), if its application is contrary to the law, we must correct the error. See United States v. Grandmaison, 71 F.3d 555, 560 (1st Cir.1996). The government concedes that the knife was used to rob fellow conspirators, but contends that the use of the weapon was intended to “protect” Lagasse’s access to the very drugs involved in the conspiracy and to “enforce” his demand for more crack to sell. The government emphasizes that Lagasse used the knife on the very premises from which the conspiracy was carried out and “during the active course of the conspiracy” and concludes that thus, it was not “clearly improbable” that the knife was connected with that offense. Finally, the government relies on the expressed policy concern behind the weapon enhancement: the increased danger of violence when drug traffickers possess weapons. U.S.S.G. § 2D1.1, comment," } ]

[ { "docid": "14299287", "title": "", "text": "MACK, Circuit Judge. Appeal by libelant, the barge owner, from a decree dismissing his libel, both as to the respondent charterer and the impleaded towing company, which under engagement with the charterer, had towed her from New York to Stamford, Conn. The coal barge was chartered December 5, 1917, under the usual demise charter with the captain’s services for an indefinite time for a trip to Stamford, Conn. She was loaded at Port Reading and delivered at New-town Creek. There she was taken in tow, on January 16, 1918, by the towing company’s tug. On January 18th she was towed to a safe place at Wilson’s Point, and remained there with other barges eight days, as Stamford Harbor was frozen up. On the 26th, after the tugs had broken a channel through, over 30 feet wide and half a mile long, they again took her in tow and landed her the same morning at Stamford. Then, at about 11a. m., the captain, without having examined her, left the barge. If he had inspected her before leaving, he would have discovered that two planks in her port bow, about even with the load water line, had been broken in passing through this channel. Due to his failure to discover this, and to take measures to avoid sinking, she sank at high tide during the night. The captain returned the following day. We concur in the view of the trial judge that it was “the master’s duty, a part of the husbandry of the boat,” to examine her, and that all of the damage, except the slight repairs due to the initial punch, was due to his negligence in failing to perform that duty. As to the initial damage, concededly the towing was carefully done, no negligence can be charged either against the tug owner or the charterer, unless it be negligence to tow with the utmost care or to permit the towing under all the then prevailing circumstances. This barge was demised in the winter time; the parties knew that it would be used when, in all probability, the ice conditions" } ]

[ { "docid": "6429936", "title": "", "text": "C. A. 2). By analogy, it would seem that ordinarily it is the bargee’s duty to see that his barge does not move from the place she was beached, -and to drop an anchor if that be necessary. If the anchor was too heavy for him to handle alone, it was a fault of the owner for insufficient manning. Moreover, the tug doubtless would have helped, had the bargee suggested that help was needed. This he did not do, but relied entirely upon the tug to determine what was necessary. However, we are not required on the present record to decide upon whom is the duty to anchor a beached tow, when due care requires the dropping of an anchor, because, for reasons now to be stated, we think no one was negligent in failing to anchor, barge No. 113. This barge was built entirely of reinforced concrete. She had a length of 150 feet, a beam of 21 feet, and was 12 feet deep, and, when.filled with water, she certainly would, not float. The bargee first discovered that she was leaking by being rolled from his bunk, while asleep, into water on the cabin floor. She had developed a decided list, so that, according to one witness, the starboard side had about 18 inches of freeboard while the port side had 4 or 5 feet. As she had no cargo, this meant that she had already-taken in much water. Indeed, the captain of the brick scow on her starboard side was so convinced that she would promptly sink that he threatened to cut the lines if she were not gotten out of the tow immediately. -The captain of the Townsend, when he pulled her out of the tow, thought that she was half full of water and might sink before he could reach the beach. She was run onto the mud flats until she was hard aground, and was left there in the belief that she would never float again, a belief shared by her bargee, as well as by the captain of the tug, and they were the" }, { "docid": "7365157", "title": "", "text": "It follows from the foregoing that the barge was not unseaworthy when delivered to the charterer but became so while in the hands of the charterer and before libelant’s chalk was taken on board. Accordingly, the charterer, who was the carrier and owner pro hac vice, became liable for the loss of the cargo, and the scow Harper No. 145 was likewise liable in rem. The Poznan (D. C.) 276 F. 418, 432; The Esrom (C. C. A.) 272 F. 266, at page 269; The Robert R. (C. C. A.) 255 F. 37; The Willie (C. C. A.) 231 F. 865; The New York (D. C.) 93 F. 495, at page 498; The Euripides (D. C.) 52 F. 161. The owner turned over a new seaworthy barge to the charterer, and, inasmuch as she received injuries which rendered her unseaworthy while in the possession of the latter, the negligence of the charterer is presumed in the absence of any explanation. These unexplained injuries caused her sinking and the loss of the cargo. The charterer is therefore primarily liable for libelant’s damages as between it and the scow Harper No. 145. While this primary liability could have been passed on to the stevedoring company by showing that the latter was responsible for the injury to the stem plank, the attempt to shift the loss failed for lack of proof. It may be argued that the scow ought to be held primarily liable because the bargee, who was paid by the owner, did not examine her with sufficient care to discover the break in the stern plank. But he did take soundings on the afternoon of August 27th and the morning of August 28th and found no water. This would seem to have been enough in the case of a harbor scow that was new and had carried her last cargo safely, at least in the absence of proof that he knew of any collision that might have been likely to injure her hull. The decree is modified so as to hold the Moran Towing & Transportation Company primarily and the scow" }, { "docid": "6522895", "title": "", "text": "December 5th. But these facts did not obviate the need for an adequate inspection by the owner or his servant before the barge embarked upon her voyage. It was not shown that Captain Styron made a sufficient examination preparatory to the fatal voyage. Aside from ascertaining by the pumps that she was taking only the normal daily amount of water, Captain Styron made what could have been, at most, a visual examination of the seams visible from the deck. He apparently relied on the local inspector, whose examination, however, was little better than his own and was made while the vessel was light. Cf. The Sundial, 43 F.(2d) 700, 702 (C.C.A.2). It is therefore unnecessary to take the extreme position urged by the libelant, namely, that nothing short of trying all the seams with a tool would be adequate examination, in order to hold, as we do, that respondent has failed to show inspection by his servant sufficient to rebut the presumption of negligence. [8-10] Nevertheless, the respondent,^ entitled to limitation of liability, which is equivalent to exoneration since the barge was a total loss and there was no pending freight. The lack of due diligence which forfeits limitation must be personal to the owner. The Galileo, 54 F.(2d) 913, 914 (C.C.A.2), affirmed Earle & Stoddart v. Ellerman’s Wilson Line, 287 U.S. 420, 425, 53 S.Ct. 200, 77 L.Ed. 403. The evidence negatives any negligence on the part of Martin himself. He did not undertake, himself, to determine the condition of the barge, but employed a competent master to look after her and to inform him of any needed repairs; and he was ready and able to make any repairs re-' quired. He had had the barge dry-docked for repairs in November, 1932, when he bought her, and again in July, 1933, at which latter time he instructed the dry-dock man to do whatever caulking necessary. Just prior to the fatal voyage the boat made a successful voyage to Camden, N. J. He had no reason to believe that she was in anything but good condition. Personal diligence on the" }, { "docid": "9417841", "title": "", "text": "wharf by reason of being blocked by other vessels. Compare Md. Transp. Co. v. Dempsey, 279 F. 94 (C. C. A. 4). The crews on the three barges were apparently unable to do anything to stop the sinking of the Calvin which occurred at about 5 A. M. in about 40 feet of water whereby she became an actual total loss of barge and cargo. The tug did not return to the barges until about 9:45 A. M., and after they had drifted half a mile or more from their original anchorage. The particular tug, after reporting the loss of the Calvin by telephone to Baltimore, was assigned to other duty and subsequently the remaining barges in the flotilla were towed to Norfolk by another tug belonging to the Transportation Company. The testimony as to the seaworthiness of the Calvin, both of eye witnesses and experts, was conflicting. It is not disputed that she was an old wooden barge, about 26 years old. In August 1933 she was hauled out of the water at Norfolk and repairs at a cost of about $200 were made to her hull. Extensive repairs had been made to her about a year before in Baltimore. In December 1933 she had reported certain damage to a cargo she was carrying, while at Alexandria, Virginia. This damage was apparently caused by improper stowing or loading in the aftermost hold whereby water in the bilge ran up over the skin of the barge and damaged the cargo there stowed. She was not hauled out of the water for inspection after this incident, and it is contended by the libellant that such an inspection should have been made, to see if any of her under water planks had been strained or other damage done. She was also given some further repairs, including new pumps, but not under water inspection, prior to the loss. There was some testimony that while she was being loaded her engines were running for a considerable time, indicating, as the libellant contends, that she was then leaking- more than normally. This testimony is of" }, { "docid": "23451046", "title": "", "text": "is all. “Q. You transport coal for the owners of the coal? A. For the owners of the coal. “Q. Do you mean to say that all yon do is to tell the Pennsylvania people that you have a boat that wants to be taken to South Amboy, and they automatically put their coal in that boat and send it back? A. Yes.” Under such circumstances the liability resting upon the respondent would be continuous from the time they were taken in tow at New York until they were returned to New York. If the respondent was negligent in its exercise of ordinary care over the barges during the period of its responsibility it must answer in damages. The dissenting opinion in the Howard Case took the position that at the time the barge went adrift she was not in charge of the corporation held responsible for her injuries. The distinction is vital. In the ordinary contract of towage, a tug is neither a common carrier nor an insurer. Therefore the highest possible degree of skill and care is not required. But the owners of a tug are bailees for hire. Bust v. Cornell Steamboat Co. (C. C.) 24 Fed. 188; The D. Newcomb (D. C.) 16 Fed. 274; The Merrimac, 17 Fed. Cas. 126, No. 9,478; The Princeton, 19 Fed. Cas. 1342, No. 11,433a, affirmed in 19 Fed. Cas. 1344, No. 11,434. As such they must exercise reasonable skill, care, and diligence in all that relates to the work until it is accomplished. Eastern Transportation Line v. Hope, 95 U. S. 297, 24 L. Ed. 477; The Margaret v. Bliss, 94 U. S. 494, 24 L. Ed. 146; The Printer, 164 Fed. 314, 90 C. C. A. 246. In the instant cases, as the respondent was under contract of bailment to take the barges to South Amboy, to load them there with coal, and to return them so loaded to New York, it is evident that the contract did not end when llxe boats were moored at South Amboy. The duty to exercise reasonable skill, care, and diligence continued" }, { "docid": "23570035", "title": "", "text": "also put in evidence a letter from the libelant to the respondent, dated August 12,1926, which stated that libelant had received a letter from the bargee of Hughes Line saying that the “barge was towed over rocks in the canal and struck hard several times.” Respondent also introduced another letter from libelant dated September 1, 1926, saying that libel-ant had received a report from the bargee of Hughes Line that the barge while in tow of the tug Winthrop from Buffalo to New York “received considerable damage at bow and stern caused by action of tug * *' when its tow struck the entrance wall to Lock 16.” Upon the foregoing record, the trial judge directed an interlocutory decree for the libelant on the ground that it was “encumbent upon the charterer to show that the damages had not been sustained through its negligence.” Interrogatories accompanied the answer, which was a general denial, whereby the libelant was asked for (1) the time and place of the damage and the manner in which it was sustained; (2) what the alleged acts of negligence on the part of the respondent consisted of; (3) whether the bargee was employed and paid by the libelant and was on board when the damage occurred; and (4) for copies of all reports made by the captain of the barge concerning the damage. Exceptions to these interrogatories were sustained. The respondent contends that: (a) The interrogatories should have been answered and the exceptions overruled. (b) The libelant failed to sustain the burden of proof imposed upon it. (c) The libel should have been dismissed. Charters of barges without motive power, accompanied by a bargee paid by the owner, are demises. The Daniel Burns (D. C.) 52 F. 159; Monk v. Cornell Steamboat Co. (C. C. A.) 198 F. 472; The Willie (C. C. A.) 231 F. 865; Hastorf v. Long (C. C. A.) 239 F. 852; Dailey v. Carroll (C. C. A.) 248 F. 466. It is argued that the barge in this ease was chartered for use in the barge canal, and that the rule which" }, { "docid": "7314313", "title": "", "text": "PER CURIAM. This is an appeal from a decree of the District Court, entered in a suit in admiralty on a marine insurance policy. The steamboat Tornado was to take a voyage from Paducah, Ky., to Tampico, Mexico, and was insured by the respondent for the voyage, the amount of the policy being $85,000. The policy provided that the Tornado should bo towed or go under her own steam to New Orleans, and from there she was to be taken on deck of a seagoing barge to Tampico. She was towed to New Orleans. The policy was then twice modified by riders, which provided that the vessel should be towed on her own bottom from New Orleans to Tampico, instead of being taken on the deck of a sea-going barge, and that the vessel and all arrangements be approved by Capt. C. A. Wilson. Arrangements were made for the tug Richmond to tow the Tornado from New Orleans to Tampico. About 10 miles down the Mississippi from New Orleans they met strong winds and swells. They continued to Pilot Town, at the mouth of the river, where they took on a Gulf pilot, who told the captain of the Richmond that the water was rough and the sea heavy in the Gulf of Mexico, and ordered the tow to anchor. The Tornado seemed to be in good condition at that time, 10 o’clock in the forenoon. At about 5 o’clock in the afternoon the Tornado was listing, and an examination disclosed that she had about 14 inches of water in her hold. Her pumps were started, and everything was done to save her that could properly and reasonably be done; but she sank at about 8:40 o’clock that evening. The owner and the insurance company could not agree on a settlement, and the owner, claiming the boat was a total loss> brought this suit for the full amount, $85,-000, of the insurance. The ease was tried to the court without a jury, and it entered a decree for the libelant for $50,922.60, with interest. The libelant has brought the case" }, { "docid": "13491916", "title": "", "text": "the tug’s negligence and that the barge was in good order when delivered. This it has failed to do. The foregoing discussion has demonstrated that the alleged hole could have resulted from a cause unconnected with any negligence of the tug. Turning to an examination of the condition of the barge when delivered, Snare has failed to show that the barge was in good order. One who offers a vessel for towing holds her out as “sufficiently staunch and strong to withstand the ordinary perils to be encountered on the voyage. If she be unseaworthy by reason of weakness, decay or leaks and such defects are not obvious to the master of the tug he will be absolved from responsibility where such unseaworthiness causes the damage complained of.” The Edmund L. Levy, 2d Cir., 1904, 128 F. 683, 684; Southgate v. Eastern Transp. Co., 4 Cir., 1927, 21 F.2d 47; A. S. Wikstrom, Inc. v. The Julia C. Moran, D.C.S.D.N.Y.1960, 190 F.Supp. 250, 251; The Rondout, D.C.E.D.N.Y.1944, 53 F.Supp. 736, 738; The Morning Star, D.C.S.D.N.Y.1926, 10 F.2d 538. Realizing that it had a duty to furnish a seaworthy barge, Snare attempts to rebut the presumption of unseaworthiness arising out of the circumstances of the sinking by urging the testimony of Wilson, the underwriter’s surveyor, the testimony of the captain and mate of the Julia and the testimony of Commander Madison. It is Snare’s contention that they inspected the tug and found her seaworthy. An examination of their testimony, however, shows that the conclusion Snare attempts to draw cannot be sustained. James Wilson, employed by Atlantic Mutual Insurance Company as a marine surveyor, surveyed the 110 on September 6, 1956. He looked over the outside of the barge, but did not go into the interior. Whether this was due to the fact that the bars had already been welded over the hatches is not ascertainable from the evidence. In any case, he accepted the statement of the Snare workmen as to conditions below decks. Wilson said he saw no hole anywhere along the outside of the vessel. But since he did" }, { "docid": "9417840", "title": "", "text": "was loaded comparatively more heavily than either of the other barges and was lower in the water than they were. About 3 A. M. on January 29,- the Calvin began to go down by the starboard stem, having evidently sprung a leak, and the water apparently came in so fast that the power engine situated ■ aft was. not able to exhaust the intake of water¿forward, and the weather conditions were such, according to the barge captain, that he was unable to work the forward hand pumps. About 3:30 he put up a red light which I find was intended to be a signal to the tug for assistance. The tug, however, was not within sight of the barges and gave no assistance, the master of the tug stating as a witness that under the -circumstances although aware of the rising storm, he did not feel called upon to do anything to look out for the safety of the barges and furthermore he said he could not reasonably have gotten his tug away from the wharf by reason of being blocked by other vessels. Compare Md. Transp. Co. v. Dempsey, 279 F. 94 (C. C. A. 4). The crews on the three barges were apparently unable to do anything to stop the sinking of the Calvin which occurred at about 5 A. M. in about 40 feet of water whereby she became an actual total loss of barge and cargo. The tug did not return to the barges until about 9:45 A. M., and after they had drifted half a mile or more from their original anchorage. The particular tug, after reporting the loss of the Calvin by telephone to Baltimore, was assigned to other duty and subsequently the remaining barges in the flotilla were towed to Norfolk by another tug belonging to the Transportation Company. The testimony as to the seaworthiness of the Calvin, both of eye witnesses and experts, was conflicting. It is not disputed that she was an old wooden barge, about 26 years old. In August 1933 she was hauled out of the water at Norfolk" }, { "docid": "23451042", "title": "", "text": "barge from her mooring; but no tug came and as the storm increased in intensity the master again, at 10:30 o’clock, protested and requested that his barge should be removed to a place of safety, and was again promised that it would be done. It was done that night, but not until after 11 o’clock, and not until after the Doherty had suffered extensive damage from the pounding she had received, and in the act of removing her she was struck a violent blow, which broke her rail. A decree has been entered in favor of the libelants in this case for $1,487.89. It is said that, when the respondent safely towed the Hercules and the Doherty to their destination at South Amboy and furnished them with a usual mooring place, safe at the time of their mooring, the mutual relations existing between tug and barge ended then anti there. Such an argument it is thought finds support in the dissenting opinion in The William Guinan Howard, 252 Fed. 85, 87, 164 C. C. A. 197. But there is a plain distinction between this case and that, as assumed in the dissenting opinion. In these cases the respondent was to take barges to South Amboy, load them with coal, and return them to New York City. The master of the Doherty and the master of the Hercules had nothing whatever to do with the movements of their respective boats from the time when respondent took them in tow until they were returned to New York. The movements of both barges during the whole intervening period were controlled by the respondent alone. William H. Doherty, who, with his mother owns the Doherty, and whose mother is the owner of the Hercules, and who makes the arrangements with the respondent for taking these boats to South Am-boy and for their return to New York with coal, testified as follows on the direct examination: “Q. How did you make tliose arrangements, in order to get these boats down there and back again? A. I simply call up the Pennsylvania towing office and report" }, { "docid": "14722976", "title": "", "text": "lookout had been stationed on the bow of the tug, and at no time was a lookout stationed on the bow of the barge. The master of the barge was in the wheelhouse with the captain. The wheel of the barge had been lashed a little to port in order to overcome the tendency of the tug to twist her to, port. A member of her crew was on the barge near the wheelhouse awaiting any orders from the tug, but none were received from either the captain of the tug or of the barge. Some doubt arises from the testimony as to whether a sufficient lookout was at any time maintained on the tug, but, in view of my conclusions, this question does not become important. The captain of the tug had full charge of the navigation of the tow, and he admitted that he was aware of the 11-foot shoal and shallow water in the vicinity of it, and that prudent navigation would not admit of any attempt to tow the barge through 14 feet of water. He also testified that he had previously encountered smoke at the same place, and from other witnesses, produced by the claimant, it appeared that such encounters were not to be wholly unexpected. Conclusions of Law. I accept the proposition, urged upon the court by the owner of the tug, that the burden is upon the barge, which alleged a breach of duty to show that there had been negligence and unskillfulness in performing the contract undertaken to its injury (The W. H. Baldwin [C. C. A.] 271 F. 411), and that the liability of the tug is not that of insurer, but it is only held to the exercise of reasonable skill and care such as a prudent navigator would exercise under similar circumstances (Aldrich v. Pennsylvania R. R. Ca. [C. C. A.] 255 P. 330). But when the damage is caused by the stranding of the barge upon well-known shoals, on the wrong side of a charted channel, a prima facie case of negligence is made out, and the burden" }, { "docid": "8128286", "title": "", "text": "his voyage. He arrived there on the morning of November 23d. A sufficient supply of fuel of good quality was procured, but after considerable delay, as a result of which the Barryton did not leave Tampico until noon of the 25th. She arrived at the place where she had anchored the Bolikow about midnight, and continued to search for her until informed by another tug of the National Oil Transport Company that the Bolikow was being towed to Tampico. The Bolikow was equipped with steam pumps, but ran out of fresh water for her boiler on the morning of November 25th, She was equipped, also, with sails, but her captain did not consider it advisable to use them, unless his pumps were working, for the reason that the cargo tanks leaked and were liable to cause a list.. It was therefore impossible to navigate the Bolikow. On the morning of November 25th, the Bolikow sighted and by signal called alongside the towboat George C. Greer, which had in tow a barge known as M. P. C. Barge No. 7, bound from Beaumont to Tampico. The Greer and Barge No. 7 were both owned by the Magnolia Petroleum Company. The Bolikow was not equipped with wireless, and her captain requested the master of the George C. Greer to use that tug’s wireless equipment and communicate with the Bolikow’s owners, either at Tampico or Galveston. It is admitted by the pleadings that the master of the Greer attempted to comply with'this request, but was unable to do so. Thereupon the captain of the Bolikow entered into negotiations with the master of the Greer for a tow of the Bolikow to Tampico. The master of the Greer demanded $20,000. The captain of the Bolikow refused to pay that amount, but stated he would pay anything within reason. Finally the master of the Greer stated that he would perform the service for the sum of $15,000, and that he was going to leave if the captain of the Bolikow did not agree to pay it. Under these circumstances the captain of the Bolikow signed" }, { "docid": "14726037", "title": "", "text": "A. 2); Stevens v. The White City, 48 F.(2d) 557 (C. C. A. 2). The relation is analogous to that of a tug which temporarily moors a barge on route, or at the end of the voyage. Bouchard Transp. Co. v. Pa. R. Co., 6 F.(2d) 362 (C. C. A. 2); McWilliams v. Davis, 285 F. 312 (C. C. A. 2); The Howard, 252 F. 85, (C. C. A. 2). Though it does not appear that the road towed all the barges from New'York to South Amboy, that in our judgment made no difference. The rack was the place fixed by the road for the delivery of barges to be loaded and then put into its tows. Nobody could expect an owner’s tug to stand by until at the road’s convenience it should take a barge out to be laden. Nor is it reasonable to suppose that nobody should meanwhile be responsible for its care, being itself helpless. We hold that the road received the boats as bailee and became responsible for a bailee’s care until they were delivered. If so, that duty remained as long as the bailment; it was not discharged as soon as the barges broke adrift. Hence when the marine superintendent at Jersey City learned of the plight of the flotilla on the afternoon of Sunday — he being a person in “privity” with the road under the limitation statute — any subsequent neglect must be charged to the road without limitation, and the question becomes one of fact; whether the road did all that a bailee should. We see no reason to complain of its action on Sunday night. The “Brinton” stood by; the “Number 32” and the “Overbrook” were sent to the rescue. So far as we can see, they did all that they could. The next morning the “Resolute” was chartered and went to the beaches; but Newman, the only witness called, swore that it was impossible to reach the barges, which were too far inshore. The “Resolute” stood by until Monday afternoon and then gave up, thinking that it could do no" }, { "docid": "17471507", "title": "", "text": "tug pushed the barge into the smooth waters of the slip no further service by the tug was rendered. The captain of the tug was asked: “Q. You didn’t do any pumping on her afterward? A. No. Q. And she moved all right. She didn’t sink, did she? A. No; she did not.” The captain of the barge testified that he did not ask for the aid of the tug. His testimony was as follows: “Q. Did you' at any time request any one on the tug Olsen to take hold of you or render you any assistance? A. No, sir. Q. Are you positive of that? A. I am positive of that. Q. Did you have any conversation at the time that the tug Olsen first came up to you in regard to any assistance to be rendered? A. No, sir. Q. You didn’t ask them for any assistance, of any kind? A. No, sir. Q. There has been considerable testimony here from several witnesses that the High Cliff was still made fast to the steamer at the time that the Olsen took you in tow, and that you were taken in tow at your own request. What do you say as to that? A. No; I was drifting up the slip when the Olsen took hold of me.” In this he was flatly contradicted by the captain of the tug who testified as follows: ‘‘Q. I would like to know what, if anything, the captain of the barge said, or called out, before you put a line to him? A. ‘Take me away from here,' lie said, T am Sinking.’ Q. Are you able to state who he said that to? A. He said it right to me; X was up in the pilot house.” There is testimony in the record to the effect that a number of vessels sank that day, but it does not appear that any boat within a slip went down. That the storm was severe is admitted, although at the time the services were rendered it had not reached its climax. But at" }, { "docid": "6429934", "title": "", "text": "v. Miramar S. S. Co., 167 F. 960 (C. C. A. 2). The question of the tug’s liability is therefore before us. .What caused the barge to leak is not known; concededly no evidence was offered to connect it with faulty navigation by the tugs. Nor were they negligent in taking her out of the tow at a time when she was obviously sinking. They beached her at the best available place. The lower court held them responsible solely because they failed to anchor or otherwise make fast the barge after they had run her upon the mud flats. This holding presupposes that the duty to anchor, if an anchor is necessary to safe mooring, rests upon the tug rather than upon the bargee. This is by no means clear under the authorities. In The M. E. Luckenbach (D. C.) 200 F. 630, affirmed 214 F. 571 (C. C. A. 2), a barge in tow was east adrift to avoid collision with a schooner. It was held to be the bargee’s duty to anchor, and that, if his failure to do so caused the barge to strand, the tug was not responsible, even though it had been negligent in bringing about the danger which necessitated casting its tow adrift. In that ease, it is true, the tug signaled to the bargee to drop anchor, while here the Townsend’s captain gave no instructions to the bargee. In The Panther, 5 F.(2d) 64 (C. C. A. 2), a barge was cast adrift while the tug was landing another boat in its tow. The drifting barge came into a collision, which might have been avoided, had the barge had an anchor and dropped it. The tug was exonerated from liability. Ordinarily, after the tug has brought its tow to a safe berth it is the duty of the bargee to see that his mooring is proper, though, if this requires more nautical skill than a boatman can be expected to have, the tug may be held at fault for not seeing that a better fast was made. The Ganoga, 257 F. 720 (C." }, { "docid": "22250361", "title": "", "text": "day, and that while he was there the barge had not collided with anything that could have loosened the plank; that he used to pump her out every eight or fifteen days unless he found occasional water in her at other times; but that ordinarily he did not stay on her at night. It was not shown that he had been on her the. night before the accident; and he could not remember whether he had been in her hold that morning or the morning before. This evidence' did not exhaust all the possibilities, or prove that the barge had not been injured while in the defendant’s custody. It replies that if the plank had been so far loosened before the barge set out that ordinary towing would sink her, she would have made enough water for the bargee to discover. But this it did not prove; it by no means follows a priori, and indeed the plaintiff put in evidence to the contrary. For all we know, a plank might be so loosened that the normal incidents of towage might cause it to give enough to sink her; and still she might not leak before she set out. Moreover, it does not definitely appear that she had not begun to leak before she left -New Jersey, for, as we have just said, the bargee could not be sure that he had examined or pumped her that morning. It is consistent with the evidence that she might have been struck the night before, even though we assume that any blow which could make her sink en route would necessarily have shown as a leak on starting. Thus, the defendant did not meet the presumption, and the judge should have directed a verdict for the plaintiff. As the jury brought in the same verdict, his charge made no difference. However, as he appears to have misapprehended the effect of our decision in Cummings v. Pennsylvania R. Co., 45 F.(2d) 152, we take this occasion to refer to that case. The presumption on which the bailor may rely is a mere rule" }, { "docid": "6522894", "title": "", "text": "but a duty not to cause damage to the libelant’s property by the negligent use of her. The Cullen No. 32, 62 F.(2d) 68, 70 (C.C.A.2). This duty he could not satisfy without taking reasonable care to have the barge safe for carriage of the cargo which he knew was laden on her, and in effect would make him responsible for any negligent failure of' his servant, the barge captain, to ascertain the unseaworthiness of the barge. The unexplained sinking of the barge establishes for the libelant a prima facie case of such negligence. See The Kathryn B. Guinan, 176 F. 301, 302 (C.C.A.2); The William I. McIlroy, 37 F.(2d) 909, 910 (D.C.E.D.N.Y.), affirmed Burns Bros. v. The William I. McIlroy, 45 F.(2d) 1023 (C.C.A.2). Respondent has failed to rebut it. It is true that the barge was in dry dock as late as July, 1933, when her bottom was painted and her seams caulked to the light water line, and that the local inspector gave her a certificate of seaworthiness before loading began on December 5th. But these facts did not obviate the need for an adequate inspection by the owner or his servant before the barge embarked upon her voyage. It was not shown that Captain Styron made a sufficient examination preparatory to the fatal voyage. Aside from ascertaining by the pumps that she was taking only the normal daily amount of water, Captain Styron made what could have been, at most, a visual examination of the seams visible from the deck. He apparently relied on the local inspector, whose examination, however, was little better than his own and was made while the vessel was light. Cf. The Sundial, 43 F.(2d) 700, 702 (C.C.A.2). It is therefore unnecessary to take the extreme position urged by the libelant, namely, that nothing short of trying all the seams with a tool would be adequate examination, in order to hold, as we do, that respondent has failed to show inspection by his servant sufficient to rebut the presumption of negligence. [8-10] Nevertheless, the respondent,^ entitled to limitation of liability, which is" }, { "docid": "23570036", "title": "", "text": "(2) what the alleged acts of negligence on the part of the respondent consisted of; (3) whether the bargee was employed and paid by the libelant and was on board when the damage occurred; and (4) for copies of all reports made by the captain of the barge concerning the damage. Exceptions to these interrogatories were sustained. The respondent contends that: (a) The interrogatories should have been answered and the exceptions overruled. (b) The libelant failed to sustain the burden of proof imposed upon it. (c) The libel should have been dismissed. Charters of barges without motive power, accompanied by a bargee paid by the owner, are demises. The Daniel Burns (D. C.) 52 F. 159; Monk v. Cornell Steamboat Co. (C. C. A.) 198 F. 472; The Willie (C. C. A.) 231 F. 865; Hastorf v. Long (C. C. A.) 239 F. 852; Dailey v. Carroll (C. C. A.) 248 F. 466. It is argued that the barge in this ease was chartered for use in the barge canal, and that the rule which makes such charters, as it was under, demises, is limited to vessels used in New York Harbor. It is also said that barges on the barge canal carry wheels hooked up for steering, and that this feature in some way differentiates them legally from harbor craft. We can see no basis for applying different rules as between barges on the canal and those in New York Harbor. Both kinds are without motive power and are essentially subject to the control and direction of the tugs which tow them. The agreements by which they are chartered are demises. Legally such vessels are regarded as in the exclusive possession of the charterer. In such a relation the charterer is only liable for negligence. But, when the barge is injured while in the exclusive possession of a bailee, the latter has the duty of going forward with evidence to explain the cause of the damage and to show that it was due to no lack of care on its part. Terry & Tench Co. v. Merritt & Chapman," }, { "docid": "8128285", "title": "", "text": "owner’s agent that the Barryton was unable to sail on account of shortage of fuel, and that it was sending 100 tons from Galveston. Finally 41 tons of coal were procured by the charterer, and the Barryton still had 25 additional tons in her bunkers, and with this 66 tons the Barryton, on November 21st, cleared from Tampico for Galveston, with the oil barge Bolikow in tow. ' The coal taken on at Tampico proved to be of a very inferior quality, and was entirely consumed by late in the afternoon of November 22d, thus leaving in the bunkers of the Barryton only 25 tons of coal. Her master came to the conclusion that he did not have sufficient coal to enable him to reach Galveston, and he anchored the Bolikow slightly in shore -from the usual course of travel, within about 4 miles of land, and about 120 miles distant from Tampico, and then returned to Tampico for the purpose of replenishing his supply of fuel, and with the intention of returning and continuing his voyage. He arrived there on the morning of November 23d. A sufficient supply of fuel of good quality was procured, but after considerable delay, as a result of which the Barryton did not leave Tampico until noon of the 25th. She arrived at the place where she had anchored the Bolikow about midnight, and continued to search for her until informed by another tug of the National Oil Transport Company that the Bolikow was being towed to Tampico. The Bolikow was equipped with steam pumps, but ran out of fresh water for her boiler on the morning of November 25th, She was equipped, also, with sails, but her captain did not consider it advisable to use them, unless his pumps were working, for the reason that the cargo tanks leaked and were liable to cause a list.. It was therefore impossible to navigate the Bolikow. On the morning of November 25th, the Bolikow sighted and by signal called alongside the towboat George C. Greer, which had in tow a barge known as M. P." }, { "docid": "6522893", "title": "", "text": "its tort claim. On December 5, 1933, the barge was loaded to less than her full capacity and towed to an anchorage. Her voyage began on December 7th. Nothing untoward occurred until the evening of December 9th when the captain discovered that she was leaking. Captain Styron testified that up to this time he had used the pumps morning and night, as was customary, and “she had been making no water to speak of.” By 7 o’clock on the morning of the 10th the barge had taken in so much water that she had to be abandoned and shortly thereafter she sank. No wind or seas had been encountered sufficient to account for a seaworthy vessel springing a leak, and the District Judge concluded that the barge must have been unseaworthy when she broke ground. This finding we shall not disturb. But since Martin had no contract relations with the libelant, he neither expressly nor impliedly warranted her seaworthiness, and the duty he owed the libelant was not an absolute duty to have her seaworthy, but a duty not to cause damage to the libelant’s property by the negligent use of her. The Cullen No. 32, 62 F.(2d) 68, 70 (C.C.A.2). This duty he could not satisfy without taking reasonable care to have the barge safe for carriage of the cargo which he knew was laden on her, and in effect would make him responsible for any negligent failure of' his servant, the barge captain, to ascertain the unseaworthiness of the barge. The unexplained sinking of the barge establishes for the libelant a prima facie case of such negligence. See The Kathryn B. Guinan, 176 F. 301, 302 (C.C.A.2); The William I. McIlroy, 37 F.(2d) 909, 910 (D.C.E.D.N.Y.), affirmed Burns Bros. v. The William I. McIlroy, 45 F.(2d) 1023 (C.C.A.2). Respondent has failed to rebut it. It is true that the barge was in dry dock as late as July, 1933, when her bottom was painted and her seams caulked to the light water line, and that the local inspector gave her a certificate of seaworthiness before loading began on" } ]

[ { "docid": "22349934", "title": "", "text": "year (in 1925) Congress amended that Act (43 Stat. 1302) with the intention to “give the claimant the right to a jury trial.” H. R. Rep. No. 1518, 68th Cong., 2d Sess., 2. See e. g., Parks v. Ross, 11 How. 362; Improvement Co. v. Munson, 14 Wall. 442; Pleasants v. Fant, 22 Wall. 116; Commissioners of Marion County v. Clark, 94 U. S. 278; Ewing v. Goode, 78 F. 442 (C. C.); cf. Southern Ry. Co. v. Walters, 284 U. S. 190; Gunning v. Cooley, 281 U. S. 90. Compare, e. g., 3 Gilbert, The Law of Evidence (1792) 1181-5; Rex v. Paine, 5 Mod. 163; Folkes v. Chadd, 3 Doug. 157. Cf. Thoe v. Chicago, M. & St. P. Ry. Co., 181 Wis. 456, 195 N. W. 407. Ex parte Peterson, 253 U. S. 300; Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494; Walker v. New Mexico & Southern Pacific R. Co., 165 U. S. 593; Capital Traction Co. v. Hof, 174 U. S. 1; cf. Stone, J., dissenting in Dimick v. Schiedt, 293 U. S. 474. 490. The rules governing the admissibility of evidence, for example, have a real impact on the jury’s function as a trier of facts and the judge’s power to impinge on that function. Yet' it would hardly be maintained that the broader rules of admissibility now prevalent offend the Seventh Amendment because at the time of its adoption evidence now admitted would have been excluded. Cf. e. g., Funk v. United States, 290 U. S. 371. E. g., during the eighteenth and nineteenth centuries, the nonsuit was being transformed in practice from a device by which a plaintiff voluntarily discontinued his action in order to try again another day into a procedure by which a defendant could put in issue the sufficiency of the plaintiff’s evidence to go to the jury, differing from the directed verdict in that respect only in form. Compare Blackstone’s Commentaries, Book III (Cooley’s ed., 1899) 376; Johnson, J., dissenting in Elmore v. Grymes, 1 Pet. 469 (1828); Oscanyan v. Winchester Arms Co., 103 U." } ]

[ { "docid": "22057151", "title": "", "text": "new trials were not addressed to the judges who presided over the trials. Instead, such motions were made at Westminster and heard en banc, by four of the judges, and the trial judge in a particular case might or might not be one of the four. There was no appeal on the point from the decision of the judges en banc. The historical evidence establishes beyond shadow of doubt that ex-cessiveness in the amount of the verdict was commonly urged as a reason for the direction of a new trial, and many new trials were ordered for that reason alone. If it is deemed necessary to find English precedent prior to 1791 for appellate review of excessiveness, we think the practice at Westminster just referred to furnishes such precedent, as it was not the trial judge, but a group of judges sitting en banc and exercising functions analo gous to those of an appellate tribunal, who determined the question of excessiveness. Nor does it appear that they found the question one of extraordinary difficulty. We are frank to say, however, that we find the most compelling and persuasive arguments favorable to the view that the Seventh Amendment is no bar to present day appellate review of the rulings of trial judges denying new trials for excessiveness of verdicts, in the reasons given by Stone, Hughes, Brandéis and Cardozo above quoted from Mr. Justice Stone’s dissent in Dimick v. Schiedt. The jury does not function alone, but in cooperation with the judge presiding over the trial For centuries, in England and in America, this has been so. Without judicial supervision over what Blackstone called the “misbehavior” of juries, a trial by jury would lack one of “the essentials of the jury trial as it was known to the common law before the adoption of the Constitution.” None of these essentials would be in the slightest degree altered or disturbed by the judge’s supervision of the trial or by the appellate review of the rulings that in the aggregate constitute such supervision. See Moore’s Federal Practice, Vol. 6, pp. 3827-8 See also" }, { "docid": "22292315", "title": "", "text": "the current tendency, however, in the direction of a broader appellate review * * * Recently, the courts of appeals faced with the question of review have generally ignored the Seventh Amendment issue * * * And so, under one theory or another, the Seventh Amendment does not interdict all appellate review of the trial court’s ruling. * * * Despite the above criticism [Judge Learned Hand’s in Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463, 465], with deference, we submit that such a review is apropos and convenient * * * (T)he Eighth and the Second Circuits are the most adamant expounders [of the doctrine of nonreviewability] ' * * * The theory upon which the majority of the circuits review * * * is that the trial judge has abused his discretion. * * * Thus, the First, Third, Fourth, Sixth, Seventh, Ninth and Tenth Circuits and the District of Columbia now recognize that they may reverse a judgment even though the only basis for review is the inadequacy or exeessiveness of the verdict”. Since the 1953 edition of Moore’s treatise, the Fifth Circuit has clearly stated that it may review the question of excessiveness on the theory that abuse of discretion is an error of law. Silverman v. Travelers Ins. Co., 5 Cir., supra, 1960, at pages 259-260 of 277 F.2d, and cases cited. And just a few weeks ago the Second Circuit arrived at the same result (although still concluding that the verdict there should not be disturbed) in a comprehensive opinion by Judge Medina where legal commentaries and eases in 47 states and in all the federal circuits were cited and where the Court concluded that the Seventh Amendment presented no barrier to review. Dagnello v. Long Island R. R. Co., 1961, 289 F.2d 797. On the other hand, Professor Charles Alan Wright, for one, is not so enthusiastic about this trend. Wright, The Doubtful Omniscience of Appellate Courts, 1957, 41 Minn.L.Rev. 751, 752-758; 3 Barron and Holtzoff, Federal Practice and Procedure (Wright Revision 1958) § 1302.1, pp. 348-352. We are not sure" }, { "docid": "12005600", "title": "", "text": "a remittitur of the excessive amount would be better for the plaintiff and without prejudice to the defendant. In Miller v. Maryland Casualty Co., 40 F.2d 463, 465, decided in 1930, the Second Circuit refused to follow the Lepisto. case, (Cabb v. Lepisto) 9 Cir., 6 F.2d 128, but thought it might be desirable to give appellate courts the power to review the damages, and that only a procedural difficulty was presented, the Seventh Amendment being no bar, closing with this statement: “Until the practice is frankly changed, we must adhere to it as it exists.” The court questioned the practice that it was bound to decide the issue by such “tenuous unrealities,” as whether the trial judge was acting within the bounds of “tolerable conclusion” in determining that the jury was within the bounds of “reasonable inference from the evidence”, when it assessed the damages at the amount stated in the verdict. Courts should not engage in such scholastic refinements, said Judge Learned Hand. At common law, in re-examining the issue of damages that had been tried by a jury, the higher court (to which Bracton and Blackstone referred) was re-examining a question of fact; it was looking to the verdict that the jury had rendered and to the facts upon which the verdict was based. It was a question of the manifest excessiveness of the verdict, and this issue was re-examined before the judgment was entered. One office or function of the motion for a new trial was an appeal from the verdict upon an alleged error of fact by the jury. If the verdict was sustained, judgment thereon was entered; if the verdict was found to be manifestly excessive, it was moderated by the justices or a new trial granted. The federal appellate practice of looking at the verdict through the eyes of the trial judge (evidently in an attempt to convert an issue of fact into a question of law) grew up in this country during the existence of a federal statute that prohibited any reversal on appeal for an error of fact. This is the" }, { "docid": "12005599", "title": "", "text": "Blackstone said rendered perfect that most excellent method of decision “which was the glory of the English law.” Maugre this: shall we repudiate such “excellent method of decision,” as violative of the common law of England in 1791? The effort of the common-law judges of the higher tribunal to ascertain the facts (the evidence of which was not, as now, preserved verbatim) is commendable. It was often disclosed to the court by affidavits or was taken from the “information” of the judge, “who usually made a special and minute report of the evidence.” Now, with the facts before them, stenographically reported, the majority of appellate federal courts refuse to consider the excessiveness of verdicts if supported by any substantial evidence, and refuse to determine the maximum or minimum amount that will be permitted to stand; but, if they think the verdict is against the weight of the evidence, they may scan the record of the trial more closely for error, and probably send the case back for an arduous, expensive, and long-delayed new trial, when a remittitur of the excessive amount would be better for the plaintiff and without prejudice to the defendant. In Miller v. Maryland Casualty Co., 40 F.2d 463, 465, decided in 1930, the Second Circuit refused to follow the Lepisto. case, (Cabb v. Lepisto) 9 Cir., 6 F.2d 128, but thought it might be desirable to give appellate courts the power to review the damages, and that only a procedural difficulty was presented, the Seventh Amendment being no bar, closing with this statement: “Until the practice is frankly changed, we must adhere to it as it exists.” The court questioned the practice that it was bound to decide the issue by such “tenuous unrealities,” as whether the trial judge was acting within the bounds of “tolerable conclusion” in determining that the jury was within the bounds of “reasonable inference from the evidence”, when it assessed the damages at the amount stated in the verdict. Courts should not engage in such scholastic refinements, said Judge Learned Hand. At common law, in re-examining the issue of damages that" }, { "docid": "2631439", "title": "", "text": "think the award quite excessive or inadequate ; that is, we have refused to consider whether his action was an abuse of discretion. Miller v. Maryland Casualty Company, 2 Cir., 40 F.2d 463; Searfoss v. Lehigh Valley R. Co., 2 Cir., 76 F.2d 762. We read Paf Manufacturing Co. v. R. L. Polk Co., 8 Cir., 72 F.2d 33, as in accord. It is true that in Fairmont Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 77 L.Ed. 439, the Supreme Court reserved the question whether such an abuse of discretion may ever be reviewed, though it denied that power to the Circuit Court of Appeals upon an extreme occasion. Certainly it did not indicate any opinion contrary to our decision. The defendant supposes that Pettingill v. Fuller, 1 Cir., 107 F.2d 933, indicated that we would no longer follow the rule of Miller v. Maryland Casualty Co., supra. However, that case did not concern the quantum of damages; and nobody doubts that an abuse of discretion as to other issues may on occasion be ground for appeal. The doctrine of Miller v. Maryland Casualty Co., supra, is limited to the insufficiency or excessiveness of the verdict, and our discussion in Pettingill v. Fuller, supra, is not to be read as meaning that there is no difference between that ground for setting aside a verdict and others. Judgment affirmed." }, { "docid": "22057152", "title": "", "text": "are frank to say, however, that we find the most compelling and persuasive arguments favorable to the view that the Seventh Amendment is no bar to present day appellate review of the rulings of trial judges denying new trials for excessiveness of verdicts, in the reasons given by Stone, Hughes, Brandéis and Cardozo above quoted from Mr. Justice Stone’s dissent in Dimick v. Schiedt. The jury does not function alone, but in cooperation with the judge presiding over the trial For centuries, in England and in America, this has been so. Without judicial supervision over what Blackstone called the “misbehavior” of juries, a trial by jury would lack one of “the essentials of the jury trial as it was known to the common law before the adoption of the Constitution.” None of these essentials would be in the slightest degree altered or disturbed by the judge’s supervision of the trial or by the appellate review of the rulings that in the aggregate constitute such supervision. See Moore’s Federal Practice, Vol. 6, pp. 3827-8 See also Galloway v. United States, 1943, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458. Thus we conclude that the Seventh Amendment is no bar, and this is in accord with the view expressed by Judge Learned Hand, writing for this Circuit in 1930, in Miller v. Maryland Casualty Co., 40 F.2d 463, 465. The Second Circuit As for the precedents, it will suffice to say that for many years we held there was no power to review the question at issue. E. g., Press Pub. Co. v. Gillette, 1915, 229 F. 108; Ford Motor Co. v. Hotel Woodward Co., 1921, 271 F. 625; Miller v. Maryland Casualty Co., 1930, 40 F.2d 463; Jacque v. Locke Insulator Corp., 1934, 70 F.2d 680; Searfoss v. Lehigh Valley R. Co., 1935, 76 F.2d 762; Powers v. Wilson, 1940, 110 F.2d 960; Nagle v. Isbrandtsen Co., 1949, 177 F.2d 163; Kennair v. Mississippi Shipping Co., 1952, 197 F.2d 605; Stevenson v. Hearst Consol. Publications, 1954, 214 F.2d 902; Maher v. Isthmian Steamship Co., 1958, 253 F.2d 414. The first" }, { "docid": "1203469", "title": "", "text": "beyond this point would conflict with our long established practice, in accordance with the general rule of the Fairmount Glass case adverted to above, not to enter upon a consideration of whether the trial judge should have so appraised the facts evidenced in the record as requiring an exercise of his discretionary power to grant a new trial either with or without a conditional remittitur by the plaintiff of part of the verdict. Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463; Caloric Stove Corp. v. Chemical Bank & Trust Co., 2 Cir., 205 F.2d 492; Kennair v. Miss. Shipping Co., Inc., 2 Cir., 197 F.2d 605; Nagle v. Isbrandtsen Co., Inc., 2 Cir., 177 F.2d 163; Press Publishing Co. v. Gillette, 2 Cir., 229 F. 108, certiorari denied 241 U.S. 661, 36 S.Ct. 448, 60 L.Ed. 1226. We are pointed to no special circumstances here which take this case outside the rule of these cases. Our decision in Herring v. Luckenbach S. S. Co., Inc., 2 Cir., 137 F.2d 598, 599, was cited by the appellant for the statement that “appellate courts act in general only where an improper excess is clearly ascertainable from the record.” But it will be noted that the holding of that case is in accord with our general practice. And the exception in the quoted excerpt from the opinion when read in connection with the cases to which it refers is seen to be without application to the situation here. The appellant suggests that appellate power to review a verdict for alleged ex-cessiveness was recognized in a dictum in Affolder v. New York, Chicago & St. Louis R. R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683, — a decision in 1950 which reversed on another ground a decision by the Court of Appeals for the Eighth Circuit. But the Eighth Circuit Court of Appeals, when the question was next before it, did not read Affolder as so holding, St. Louis Southwestern Ry. Co. v. Ferguson, 8 Cir., 182 F.2d 949, and we agree. In Caloric Stove Corp. v. Chemical Bank," }, { "docid": "21821130", "title": "", "text": "up nothing for review in an appellate court. Missouri Pac. R. Co. v. Chicago & A. R. Co., 132 U.S. 191, 10 S.Ct. 65, 33 L.Ed. 309; Fish-burn v. Chicago, M. & St. P. Ry. Co., 137 U.S. 60, 11 S.Ct. 8, 34 L.Ed. 585; Miller v. Maryland Casualty Co., 2 Cir., 40 F. 2d 463. If the plaintiffs wished to assert that there was no case to go to the jury, they were bound to move for a directed verdict. They may not take a verdict and then complain that it is not what they expected; or at least their right to complain ends with the trial judge. See Miller v. Maryland Casualty Co., supra, 40 F.2d at page 465. Under federal practice an appellate court will not consider the question of the sufficiency of the evidence in the absence of a request for an instructed verdict. Hartford Life & Annuity Ins. Co. v. Unsell, 144 U.S. 439, 12 S.Ct. 671, 36 L.Ed. 496; Hansen v. Boyd, 161 U.S. 397, 16 S.Ct. 571, 40 L.Ed. 746; Sacramento Suburban Fruit Lands Co. v. Elm, 9 Cir., 29 F.2d 233, 235; Century Indemnity Co. v. Shakespeare, 10 Cir., 74 F.2d 392, 394. But for the appellants’ consolation we may say that, were the question before us we should find the verdict adequately supported by the evidence. There is no merit in the contention that evidence on behalf of the defendant was improperly admitted. The evidence under attack consists of correspondence between the defendant and Rolfe-Rogers— exhibits A to L. Beginning in 1915 RolfeRogers served as the defendant’s sales representative in Argentina for many years; in 1930 he took L. Geoffrey Flint into partnership with him under the firm name Rolfe-Rogers & Flint, and in 1931 the other plaintiff, P. A. Leicester Flint, became a partner. This firm continued to represent the defendant until 1932 when Rolfe-Rogers retired and the plaintiffs formed the firm of Flint Brothers. Before the defendant offered exhibits A to L the plaintiffs themselves had introduced evidence tending to show that the terms of Rolfe-Rogers’ employment were relevant" }, { "docid": "11876780", "title": "", "text": "and 11, the district judge followed Stockton v. Baker. We agree that the question was not for the jury. Even if the cases relied on by appellant upon analysis sustain its position, the resolution of this conflict in the Arkansas decisions, a question of local law, was for the district judge. Russell v. Turner, 8 Cir., 148 F.2d 562. This court is committed to the rule that assignments of excessiveness in jury verdicts, as well as the contention that the verdict is the result of passion and prejudice on the part of the jury, where, as here, the argument advanced in support of passion and prejudice is the alleged excessiveness of the verdict, present nothing for review. This rule and the possible exceptions to it are discussed in the opinion in St. Louis, Southwestern R. Co. v. Ferguson, 8 Cir., 182 F.2d 949, 954, where the decisions of this and other circuits and of the Supreme Court of the United States are considered at length, and where we announced our refusal to depart from the rule of our earlier decisions as follows, 182 F.2d at page 955: “It may be that a change in the rule is desirable, to allow a general review of the-question of excessiveness, such as is the-practice in many state appellate courts, or with a more restrained sense of responsibility, perhaps, to permit judgment to be passed upon whether there has been an abuse of discretion by the trial court-in refusing to set aside a verdict on motion-for new trial. Difficulties, however, would', be involved in any such practice, as Judge-Learned Hand has pointed out in the Miller case, supra, [Miller v. Maryland Casualty Co.] 2 Cir., 40 F.2d [463] at page 465;. and, under the concept of appellate func tion in jury cases which has heretofore been expressed by the decisions of the Supreme Court and in our own, the change is not one which we would feel entitled to make.” But what has been said does not finally dispose of the case. On the submission of this appeal we are presented with a motion" }, { "docid": "22576692", "title": "", "text": "also, Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 190 F.2d 825, 830; Consumers Power Co. v. Nash, 6 Cir., 164 F.2d 657, 660; dissenting opinions of Judge Holmes ill Sunray Oil Corp. v. All-britton, 5 Cir., 187 F.2d 475, on rehearing 188 F.2d 751. These decisions, we believe, are representative of the correct view with respect to appellate authority to review the trial court’s discretion. If that discretion be abused, this court will not be powerless to act. The question still remains, however, as to whether the power should be exercised in the present case. In undertaking this determination we are, in many respects, on an uncharted course, for damages assessed by a jury are largely discretionary with it. Thus, to reverse the judgment we must conclude that the trial court has abused its discretion in failing to conclude that the jury abused its discretion in returning a verdict of the magnitude of the one here involved. Judge Learned Hand considered this problem in Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463, 465, where he said: “We must in effect decide whether it was within the bounds of tolerable conclusion to say that the jury’s verdict was in- the bounds of tolerable conclusion. To decide cases by such tenuous unrealities seems to us thoroughly undesirable; parties ought not to be bound by gossamer strands; judges ought not to engage in scholastic refinements.” Since this statement, little has been suggested in the way of concrete guide posts. We are told that if the verdict is “grossly excessive,” Southern Pac. Co. v. Guthrie, supra, or “monstrous,” Affolder v. New York, Chicago & St. L. R. Co., 339 U. S. 96, 101, 70 S.Ct. 509, 94 L.Ed. 683, a failure to set it aside is an abuse of discretion. While these suggested premises amount to more than “tenuous unrealites,” they are little more than comparatives dependent for their meaning upon the facts of each case, the nature of the damages, the wrong to be remedied. After full consideration, we conclude that, under the facts of this case, the trial court" }, { "docid": "2644243", "title": "", "text": "open until the eventual decision was made. That decision was an exercise of the court’s discretion in favor of the defendant even though not so much in its favor as it had been led to expect. Where the claimed ex-cessiveness of a verdict is not purely a matter of law — as where the maximum recovery permitted by a statute has been exceeded— but is only one of judgment as to the amount proved by the evidence, the decision rests with the trial court. Southern Railroad Co. v. Bennett, 233 U. S. 80, 34 S. Ct. 566, 58 L. Ed. 860. This court lacks the power to re-dew as a question of fact the subject of excessive damages. Fairmount Glass Works v. Coal Co., 287 U. S. 474, 481, 53 S. Ct. 252, 77 L. Ed. 439; Jacque v. Locke Insulator Corporation (C. C. A. 2) 70 F.(2d) 680; Ford Motor Co. v. Hotel Woodward Co. (C. C. A. 2) 271 F. 625, 630. Lacking that power, we cannot decide that the judgment as rendered was in fact excessive. Consequently no reversible error has been shown in the denial, upon the condition finally imposed, of the motion to set aside the verdict and grant a new trial. For the limitations upon our power to review the action of a trial court upon motions for a new tidal, see Miller v. Maryland Casualty Co. (C. C. A.) 40 F.(2d) 463. The defendant endeavored to prove on the question of damages that the plaintiff was guilty of contributory negligence in failing to protest to the driver of the motorcar that his speed was excessive. It appeared that the plaintiff was familiar with the track over which the car was being operated and knew that it was approaching a sharp curve where the view ahead was obstructed but neither warned the driver nor made any protest as to the excessive speed of the car. When the driver of the car was being examined as a witness at the trial, he was asked by the defendant if he would have reduced the speed if" }, { "docid": "22057169", "title": "", "text": "Cir., 1947, 163 F.2d 453; Snowden v. Matthews, 10 Cir., 1947, 160 F.2d 130; Earl W. Baker & Co. v. Lagaly, 10 Cir., 1944, 144 F.2d 344, 154 A.L.R. 1098. . Dimick v. Schiedt, 1935, 293 U.S. 474, 488, 55 S.Ct. 296, 79 L.Ed. 603. . Dimick v. Schiedt, supra, 293 U.S. at pages 491-492, and note 2, 55 S.Ct. at page 303; Moore’s Federal Practice, Vol. 6, p. 3828; Riddell, New Trial at the Common Law, 26 Yale L.J. 49 (1916); Blume, Review of Facts in Jury Cases— The Seventh Amendment, 20 J.Am.Jud. Soc’y 130, 131 (1936); Comment, Federal Appellate Review of Excessive or Inadequate Damage Awards, 28 Fordham L.Rev. 500, 503 (1959); Comment, Federal Review of Excessive Verdicts, 30 Texas L.Rev. 242, 245 n. 27 (1951); Comment, 32 Mich.L.Rev. 387, 391 (1934); 65 Harv.L.Rev. 1064, 1065 (1952). . While the Court in Dimick v. Sehiedt concluded that there was some English precedent for remittur, it did not state whether in England the trial judge had the power to grant the remittitur. Since the English trial judge had no power to grant a new trial, it is to be assumed that he could not grant a remittitur. . The English practice prior to the adoption of the Seventh Amendment and the light it throws on the problem at hand are also discussed in Dimick v. Schiedt, supra, 293 U.S. at pages 491-492, 55 S.Ct. at page 303; Moore’s Federal Practice, Vol. 6, pp. 3827-3828; Hinton, Power of Federal Appellate Court to Review Ruling on Motion for New Trial, 1 U.Chi.L.Rev. 111 (1933); Riddell, New Trial at the Common Law, 26 Yale L.J. 49 (1916); Blume, Review of Facts in Jury Cases — The Seventh Amendment, 20 J.Am.Jud.Soc’y 130 (1936); Note, Appealability of Rulings for New Trial in the Federal Courts, 98 U.Pa.L.Rev. 575 (1950) ; Comment, Federal Appellate Review of Excessive or Inadequate Damage Awards, 28 Fordham L.Rev. 500 (1959); Comment, Federal Review of Excessive Verdicts, 30 Texas L.Rev. 242 (1951) ; Comment, 32 Mich.L.Rev. 387 (1934); 65 Harv.L.Rev. 1064 (1952). . See the following comments of Mr. Justice" }, { "docid": "22185940", "title": "", "text": "essential element of a jury trial. As explained in Herron v. Southern Pacific Co., 283 U.S. 91, 95, 51 S.Ct. 383, 384, 75 L.Ed. 857 (1931): In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. This discharge of the judicial function as at common law is an essential factor in the process for which the Federal Constitution provides .... “Trial by jury,” said the court in Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 [19 S.Ct. 580, 585, 585-86, 43 L.Ed. 873 (1899)], “in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empan-elled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.” See, also, United States v. Philadelphia & Reading R. Co., 123 U.S. 113, 114 [8 S.Ct. 77, 77-78, 31 L.Ed. 138 (1887)]; Patton v. United States, 281 U.S. 276, 288, 289 [50 S.Ct. 253, 254, 254-55, 74 L.Ed. 854 (1930)]. See also St. Louis v. Praprotnik, — U.S. -, 108 S.Ct. 915, 925, 99 L.Ed.2d 107 (1988); Miller v. Fenton, 474 U.S. 104, 112-14, 106 S.Ct. 445, 451-52, 88 L.Ed.2d 405 (1985); Galloway v. United States, 319 U.S. 372, 389-92, 63 S.Ct. 1077, 1086-88, 87 L.Ed. 1458 (1943); Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935); Sparf & Hansen v. United States, 156 U.S. 51, 80-82," }, { "docid": "23108513", "title": "", "text": "find it unnecessary, for the purpose of arriving at a decision herein, to determine whether Cobb v. Lepisto should be repudiated. The second reason is, that we are far from satisfied that the contrary decisions are right, but think the present trend of authoritative decision is in the direction of the rule in our Cobb v. Lepisto case. The rule stated in Scott v. Baltimore & O. R. R. Co., supra, and the cases cited therein, found expression in early decisions of the Supreme Court. Thus, in New York, Lake Erie & Western Railroad Company v. Winter, 143 U.S. 60, 12 S.Ct. 356, 361, 36 L.Ed. 71, it was said: “Whether the verdict was excessive, is not our province to determine on this writ of error. The correction of that error, if'there were any, lay with the court below upon a motion for a new trial, the granting or refusal of which is not assignable for error here.” Substantially the same language was used in Southern Ry. Carolina Division v. Bennett, 1914, 233 U.S. 80, 87, 34 S.Ct. 566, 58 L.Ed. 860. These early cases are explained by Judge Learned Hand in Miller v. Maryland Casualty Co., 2 Cir., 1930, 40 F.2d 463. The rule is there said to be based upon a procedural difficulty in that historically the writ of error did not afford review of the trial court’s action upon a motion for a new trial, and it was said that the appeal later provided for was subject to the same limitations. Subsequently, in Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 482, 53 S.Ct. 252, 254, 77 L.Ed. 439, the Supreme Court expressly referred to the decision in Miller v. Maryland Cas. Co., supra, saying: “It has been suggested that a review must be denied be-, cause of the historical limitation of the writ of error to matters within the record, of which the motion for a new trial was not a part. Compare Judge Learned Hand in Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463. But the denial of review can" }, { "docid": "22057153", "title": "", "text": "Galloway v. United States, 1943, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458. Thus we conclude that the Seventh Amendment is no bar, and this is in accord with the view expressed by Judge Learned Hand, writing for this Circuit in 1930, in Miller v. Maryland Casualty Co., 40 F.2d 463, 465. The Second Circuit As for the precedents, it will suffice to say that for many years we held there was no power to review the question at issue. E. g., Press Pub. Co. v. Gillette, 1915, 229 F. 108; Ford Motor Co. v. Hotel Woodward Co., 1921, 271 F. 625; Miller v. Maryland Casualty Co., 1930, 40 F.2d 463; Jacque v. Locke Insulator Corp., 1934, 70 F.2d 680; Searfoss v. Lehigh Valley R. Co., 1935, 76 F.2d 762; Powers v. Wilson, 1940, 110 F.2d 960; Nagle v. Isbrandtsen Co., 1949, 177 F.2d 163; Kennair v. Mississippi Shipping Co., 1952, 197 F.2d 605; Stevenson v. Hearst Consol. Publications, 1954, 214 F.2d 902; Maher v. Isthmian Steamship Co., 1958, 253 F.2d 414. The first indication of a change of view came in Comiskey v. Pennsylvania R. R., 1956, 228 F.2d 687, 688, followed by Dellaripa v. New York, N. H. & Hartford. R. R., 1958, 257 F.2d 738. It is strange that the rule of nonreviewability should have hung on so long, despite the practically unanimous protests of text writers and commentators. See Moore’s Federal Practice, Vol. 6, Para. 59.08 [6]; Hinton, Power of Federal Appellate Court to Review Ruling on Motion for New Trial, 1 U.Chi.L. Rev. 111 (1933); Blume, Review of Facts in Jury Cases — The Seventh Amendment, 20 J.Am.Jud. Soc’y 130 (1936); Note, Appealability of Rulings on Motions for New Trial in the Federal Courts, 98 U.Pa.L.Rev. 575 (1950); Comment, Federal Appellate Review of Excessive or Inadequate Damage Awards, 28 Fordham L.Rev. 500 (1959); Comment, Federal Review of Excessive Verdicts, 30 Texas L.Rev. 242 (1951); 65 Harv.L.Rev. 1064 (1952). The claim that such review was too difficult has been conclusively disproved by the fact that appellate courts throughout the nation perform this function daily and" }, { "docid": "1203468", "title": "", "text": "to a jury in accord with that rule. Annotations in 33 A.L.R. 384, 400 and 17 A.L.R. 2d 527, 542, indicate that the holding of these New York cases is in accord with the weight of authority elsewhere. See Bucher v. Krause, 7 Cir., 200 F.2d 576, for its holding that the same rule is recognized in Illinois. Thus we find in the record nothing whatever to suggest that the judge, in the exercise of the wide discretion confided to him, acted under any misapprehension as to the law. And we have no basis for disregarding the admonition of Fairmount Glass Works v. Cub Fork Coal Co., supra, 287 U.S. at p. 485, 53 S.Ct. at page 255, 77 L.Ed. 439, that “Appellate courts should be slow to impute to juries a disregard of their duties, .and to trial courts a want of diligence or perspicacity in appraising the jury s conduct.” Finding that the action below did not proceed on error of law, our limited power of review is exhausted. To extend our review beyond this point would conflict with our long established practice, in accordance with the general rule of the Fairmount Glass case adverted to above, not to enter upon a consideration of whether the trial judge should have so appraised the facts evidenced in the record as requiring an exercise of his discretionary power to grant a new trial either with or without a conditional remittitur by the plaintiff of part of the verdict. Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463; Caloric Stove Corp. v. Chemical Bank & Trust Co., 2 Cir., 205 F.2d 492; Kennair v. Miss. Shipping Co., Inc., 2 Cir., 197 F.2d 605; Nagle v. Isbrandtsen Co., Inc., 2 Cir., 177 F.2d 163; Press Publishing Co. v. Gillette, 2 Cir., 229 F. 108, certiorari denied 241 U.S. 661, 36 S.Ct. 448, 60 L.Ed. 1226. We are pointed to no special circumstances here which take this case outside the rule of these cases. Our decision in Herring v. Luckenbach S. S. Co., Inc., 2 Cir., 137 F.2d 598, 599, was cited" }, { "docid": "22292314", "title": "", "text": "we concluded that the verdict was “so excessive as to shock the conscience” and was “not fairly supported by the evidence”, Missouri-K.-T. R. Co. of Texas v. Ridgway, 8 Cir., 191 F.2d 363, 368, 29 A.L.R.2d 984. We recognize now, as we did ten years ago in Ridgway, supra, at page 367 of 191 F.2d, that other federal circuits have held “that an appellate court may review as a question of law whether the trial court abused its discretion in refusing to set aside a verdict for excessiveness”. We are also aware that Professor Moore in Volume 6, Moore’s Federal Practice, Second Edition 1953, Par. 59.08[6], pp. 3824, 3827-3829, 3834, 3836 and 3839, has observed that “The reviewability of a trial court’s grant or denial — usually the trial court’s denial — of a motion for new trial on the ground of inadequacy or excessiveness has been the subject of much discussion. And, as we shall see, there is considerable conflict in the decisions as to the power of an appellate court to review, with the current tendency, however, in the direction of a broader appellate review * * * Recently, the courts of appeals faced with the question of review have generally ignored the Seventh Amendment issue * * * And so, under one theory or another, the Seventh Amendment does not interdict all appellate review of the trial court’s ruling. * * * Despite the above criticism [Judge Learned Hand’s in Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463, 465], with deference, we submit that such a review is apropos and convenient * * * (T)he Eighth and the Second Circuits are the most adamant expounders [of the doctrine of nonreviewability] ' * * * The theory upon which the majority of the circuits review * * * is that the trial judge has abused his discretion. * * * Thus, the First, Third, Fourth, Sixth, Seventh, Ninth and Tenth Circuits and the District of Columbia now recognize that they may reverse a judgment even though the only basis for review is the inadequacy or exeessiveness" }, { "docid": "2631438", "title": "", "text": "moral reprobation. But it is certainly true that there are many who would regard them as reprehensible in the highest measure. Not only do they imperil life in case of a blow-out, but they make exceedingly dangerous all turns necessary to follow the road. Moreover, they are not the consequence of momentary inattention, but of a deliberate purpose to enjoy the exhilaration of the peril they create. Certainly a jury was justified in finding the defendant guilty of gross negligence; in their place we should have done the same. The defendant also complains of the amount of the judgment. The jury brought in a verdict for $15,000 which the judge set aside unless the plaintiff would remit $6,000; this he did, but the defendant insists that the judge had abused his discretion in not reducing it still further. We have declared that where the jury has actually attempted to assess damages and has not exceeded permissible legal limits, we will not review the order of the trial judge denying a new trial, though we may think the award quite excessive or inadequate ; that is, we have refused to consider whether his action was an abuse of discretion. Miller v. Maryland Casualty Company, 2 Cir., 40 F.2d 463; Searfoss v. Lehigh Valley R. Co., 2 Cir., 76 F.2d 762. We read Paf Manufacturing Co. v. R. L. Polk Co., 8 Cir., 72 F.2d 33, as in accord. It is true that in Fairmont Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 77 L.Ed. 439, the Supreme Court reserved the question whether such an abuse of discretion may ever be reviewed, though it denied that power to the Circuit Court of Appeals upon an extreme occasion. Certainly it did not indicate any opinion contrary to our decision. The defendant supposes that Pettingill v. Fuller, 1 Cir., 107 F.2d 933, indicated that we would no longer follow the rule of Miller v. Maryland Casualty Co., supra. However, that case did not concern the quantum of damages; and nobody doubts that an abuse of discretion as to" }, { "docid": "22057170", "title": "", "text": "English trial judge had no power to grant a new trial, it is to be assumed that he could not grant a remittitur. . The English practice prior to the adoption of the Seventh Amendment and the light it throws on the problem at hand are also discussed in Dimick v. Schiedt, supra, 293 U.S. at pages 491-492, 55 S.Ct. at page 303; Moore’s Federal Practice, Vol. 6, pp. 3827-3828; Hinton, Power of Federal Appellate Court to Review Ruling on Motion for New Trial, 1 U.Chi.L.Rev. 111 (1933); Riddell, New Trial at the Common Law, 26 Yale L.J. 49 (1916); Blume, Review of Facts in Jury Cases — The Seventh Amendment, 20 J.Am.Jud.Soc’y 130 (1936); Note, Appealability of Rulings for New Trial in the Federal Courts, 98 U.Pa.L.Rev. 575 (1950) ; Comment, Federal Appellate Review of Excessive or Inadequate Damage Awards, 28 Fordham L.Rev. 500 (1959); Comment, Federal Review of Excessive Verdicts, 30 Texas L.Rev. 242 (1951) ; Comment, 32 Mich.L.Rev. 387 (1934); 65 Harv.L.Rev. 1064 (1952). . See the following comments of Mr. Justice Gray in Capital Traction Co. v. Hof, 1899, 174 U.S. 1, 13-14, 19 S.Ct. 580, 585, 43 L.Ed. 873: “ ‘Trial by jury,’ in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and * * * to set aside their verdict if, in his opinion, it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion.” . Blackstone’s Commentaries, Vol. 3, p. 388. . Delaney v. New" }, { "docid": "22754643", "title": "", "text": "the United States.” Fed. Rule Civ. Proc. 59(a). That authority is large. See 6A Moore’s Federal Practice ¶ 59.05[2], pp. 59-44 to 59-46 (2d ed. 1996) (“The power of the English common law trial courts to grant a new trial for a variety of reasons with a view to the attainment of justice was well established prior to the establishment of our Government.”); see also Aetna Casualty & Surety Co. v. Yeatts, 122 F. 2d 350, 353 (CA4 1941) (“The exercise of [the trial court’s power to set aside the jury’s verdict and grant a new trial] is not in derogation of the right of trial by jury but is one of the historic safeguards of that right.”); Blunt v. Little, 3 F. Cas. 760, 761-762 (No. 1,578) (CC Mass. 1822) (Story, J.) (“[I]f it should clearly appear that the jury have committed a gross error, or have acted from improper motives, or have given damages excessive in relation to the person or the injury, it is as much the duty of the court to interfere, to prevent the wrong, as in any other case.”). “The trial judge in the federal system,” we have reaffirmed, “has . . . discretion to grant a new trial if the verdict appears to [the judge] to be against the weight of the evidence.” Byrd, 356 U. S., at 540. This discretion includes overturning verdicts for excessiveness and ordering a new trial without qualification, or conditioned on the verdict winner’s refusal to agree to a reduction (remittitur). See Dimick v. Schiedt, 293 U. S. 474, 486-487 (1935) (recognizing that remittitur withstands Seventh Amendment attack, but rejecting additur as unconstitutional). In contrast, appellate review of a federal trial court’s denial of a motion to set aside a jury’s verdict as excessive is a relatively late, and less secure, development. Such review was once deemed inconsonant with the Seventh Amendment’s Reexamination Clause. See, e. g., Lincoln v. Power, 151 U. S. 436, 437-438 (1894); Williamson v. Osenton, 220 F. 653, 655 (CA4 1915); see also 6A Moore’s Federal Practice ¶59.08[6], at 59-167 (collecting cases). We subsequently" } ]

[ { "docid": "23521216", "title": "", "text": "the Internal Revenue Code), but just as it was clear Congress intended bankruptcy courts to pass upon tax matters accruing prior to bankruptcy only if an actual tax liability had been ascertained by the District Director and a proof of claim had been filed by the Commissioner, it is equally evident that Congress intended the same procedure with respect to tax matters accruing after bankruptcy.” This Court has today rejected that premise of an IRS self-imposed “proof of claim” restriction or prerequisite upon the Bankruptcy Court’s jurisdiction under § ll(a)(2A) to hear and determine the amount and legality of unpaid income tax indebtedness accruing prior to bankruptcy, and the dischargeability thereof under Section 17 of the Bankruptcy Act, as amended in 1966 and 1970, 11 U.S.C. § 35(a) and (c), and held that such jurisdiction was vested by Congress in the Bankruptcy Court whether or not IRS had made prior claim, notice of deficiency or assessment for unpaid income tax. In re Gwilliam, 519 F.2d 407 (9th Cir. 1975) (No. 74-2350). We discern no logical reason why the expressed language of § ll(a)(2A) should not be read and applied with equal force and effect to federal income taxes accruing after bankruptcy, and we subscribe to Professor Collier’s teaching that “the immaterial elements not affecting the [Bankruptcy Court’s] jurisdiction include the following: ... (3) whether the tax arose prior to or after bankruptcy.” Gwilliam, supra at 409; 3A Collier on Bankruptcy ¶ 64.407 at 2234 — 35. We here hold that the absence of a prior IRS claim, notice of deficiency or assessment does not impede or vitiate the jurisdiction of the Bankruptcy Court under § ll(a)(2A), separate and apart from its jurisdiction under § 102, to hear and determine the amount or legality of any unpaid federal income taxes accruing after bankruptcy, and to relieve the Trustee from liability therefor as an item of cost or expense of his administration upon appropriate order of closure of the bankruptcy proceedings and discharge of the Trustee. Finally, we conclude that the order of the District Court dated December 18, 1972 was erroneous" } ]

[ { "docid": "15145139", "title": "", "text": "portion of the indebtedness; (2) that $1,140.10, the remaining portion of the trust fund indebtedness, remained due and owing, and was not dischargeable in bankruptcy; and (3) that the $2,566.03 in income taxes owed for 1968 and $994.24 representing the employer’s share of F.I.C.A. taxes for the years 1968 and 1969 were dischargeable, and had been discharged, in bankruptcy. On appeal from this decision, the district court affirmed. In this court, the government argues that since it did not file a proof of claim for taxes, did not otherwise participate in the bankruptcy proceedings, and did not voluntarily consent to the bankruptcy court’s jurisdiction in this particular case, that court lacked jurisdiction over the United States on sovereign immunity grounds. Appellant further argues that the pertinent provisions of the Bankruptcy Act do not apply to an indebtedness for federal taxes, and that the taxpayer’s complaint, in reality, seeks a declaratory judgment for federal taxes. In this latter regard, the government notes that the Declaratory Judgment Act, 28 U.S.C. § 2201, provides that a declaratory judgment may be granted in a case of actual controversy “except with respect to federal taxes”. Finally, the government argues that the bankruptcy court, and the district court, erred in requiring the IRS to apply the last $1,313.12 in tax payments to the non-dischargeable trust fund indebtedness. The issues presented by the government in this case have been raised and rejected in several thorough and well reasoned recent opinions; see, Bostwick v. United States, 521 F.2d 741 (8th Cir., 1975); Gwilliam v. United States, 519 F.2d 407 (9th Cir., 1975); In Re Durensky, 377 F.Supp. 798 (N.D.Tex. 1974), aff’d 519 F.2d 1024 (5th Cir., 1975). Another detailed discussion of these issues by this court is therefore unnecessary. With respect to the government’s sovereign immunity argument, it is axiomatic that the sovereign immunity of the United States can be waived impliedly, as well as explicitly, by statute. See, Schlafly v. Volpe, 495 F.2d 273, 280-282 (7th Cir., 1974). In this regard, Section 2(a)(2A) of the Bankruptcy Act, 11 U.S.C. § ll(a)(2A), provides that courts of bankruptcy have" }, { "docid": "22235825", "title": "", "text": "F.Supp. at 805 — 806. We have discovered no circumstances which would compel a different disposition of the appeal in this court. In conclusion, we hold that the interlocutory order under consideration here, although entered in a proceeding in bankruptcy, lacks that “definitive operative finality” necessary to render it ap-pealable as of right under section 24a of the Bankruptcy Act. Although the Government’s challenge to the bankruptcy court’s jurisdiction is certainly not a frivolous one and would constitute a question of first impression in this Circuit, the long procedural history of this case demonstrates why review by this Court at this time would be at war with the policy against piecemeal appeals which underlies federal jurisprudence and the policy of expedited adjudication which undergirds federal bankruptcy law. Appeal dismissed. . Section 2a provides that courts of bankruptcy are invested with jurisdiction to: (2A) Hear and determine, or cause to be heard and determined, any question arising as to the amount or legality of any unpaid tax, whether or not previously assessed, which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction . . . . (12) Discharge or refuse to discharge bankrupts, set aside discharges, determine the dischargeability of debts, and render judgments thereon . We note that the Eighth and Ninth Circuits, both relying heavily on the district court’s opinion in the instant case, have recently decided that bankruptcy courts possess jurisdiction under section 2a(2A) to entertain applications such as that of Durensky here. In re Bostwick, 8 Cir. 1975, 521 F.2d 741; In re Gwilliam, 9 Cir. 1975, 519 F.2d 407. See In re Murphy, N.D.Ala.1974, 381 F.Supp. 813, 816; In re Savage, C.D.Cal. 1971, 329 F.Supp. 968, 969; see also Plumb, The Tax Recommendations of the Commission on the Bankruptcy Laws — Tax Procedures, 88 Harv.L.Rev. 1360/ 1389-99 (1975); Plumb, The Tax Recommendations of the Commission on the Bankruptcy Laws — Priority and Dischargeability of Tax Claims, 59 Cornell L.Rev. 991, 1050-54 (1974); 9 Mertens, Law of Income Taxation, § 54.03; but see In re Zook, C.D.Cal.1974," }, { "docid": "23521215", "title": "", "text": "Collier on Bankruptcy 1 64.106 at 2101 (14th ed. rev. 1972). Therefore, the Trustee’s fiduciary consideration and the Bankruptcy Court’s treatment of accrued and unpaid federal income taxes in relationship to the Bankrupt’s estate must be framed and geared to the prior or after bankruptcy tax classification, respectively. We agree with the Trustee that the Second Petition did not present a mere claim for declaratory judgment; however, we cannot accept the Bankrupt’s overly simplified premise that the tax question was an item of a cost of administration. We are satisfied that implicitly within the Referee’s order that “the Trustee ... is not personally liable for any taxes which hereafter may be assessed against this Estate” is an exercise of judicial authority to hear and determine that no federal income tax had accrued during the period of time involved. The. issue on appeal is narrowed by IRS’s briefing statement that it is undisputed that “the Bankruptcy Court has plenary power to hear and determine tax controversies (§§ 102 and 104, § ll(a)(2A), and § 6871(b) of the Internal Revenue Code), but just as it was clear Congress intended bankruptcy courts to pass upon tax matters accruing prior to bankruptcy only if an actual tax liability had been ascertained by the District Director and a proof of claim had been filed by the Commissioner, it is equally evident that Congress intended the same procedure with respect to tax matters accruing after bankruptcy.” This Court has today rejected that premise of an IRS self-imposed “proof of claim” restriction or prerequisite upon the Bankruptcy Court’s jurisdiction under § ll(a)(2A) to hear and determine the amount and legality of unpaid income tax indebtedness accruing prior to bankruptcy, and the dischargeability thereof under Section 17 of the Bankruptcy Act, as amended in 1966 and 1970, 11 U.S.C. § 35(a) and (c), and held that such jurisdiction was vested by Congress in the Bankruptcy Court whether or not IRS had made prior claim, notice of deficiency or assessment for unpaid income tax. In re Gwilliam, 519 F.2d 407 (9th Cir. 1975) (No. 74-2350). We discern no logical" }, { "docid": "11410911", "title": "", "text": "of competent jurisdiction before the commencement of the case under this title .... 11 U.S.C. § 505(a). To the extent that a bankruptcy court must determine a debtor’s tax liability in an area where such a determination may otherwise be barred by the Tax Injunction Act, the overwhelming majority view is that Congress expressly conferred jurisdiction on bankruptcy courts to do so in § 505 of the Code. In re Hechinger Investment Co. of Delaware, Inc., 254 B.R. 306, 315 (Bankr.D.Del.2000). The Third Circuit “ha[s] consistently interpreted § 505(a) as a jurisdictional statute that confers on the bankruptcy court authority to determine certain tax claims.” City of Perth Amboy v. Custom Distribution Serv., Inc. (In re Custom Distribution Serv., Inc.), 224 F.3d 235, 239-40 (3d Cir.2000). The legislative history of Section 505 emphasizes that it permits the bankruptcy court to determine the tax liability of a debtor “that has not been contested before or adjudicated by a judicial or administrative tribunal of competent jurisdiction before the bankruptcy case.” Quattrone Accountants, Inc. v. I.R.S., 895 F.2d 921, 925 (3d Cir.1990) citing S.Rep. No. 989, 95th Cong., 2d Sess. 67, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5853; see also In re Century Vault Company, 416 F.2d 1035, 1041 (3d Cir.1969) (Bankruptcy Act § 2a(2A) — predecessor to Code § 550 — allowed trustee to review tax claim after time had run against the debt- or for such a challenge). The authority under section 505(a) to determine the amount or legality of a tax is discretionary. See Shapiro v. I.R.S., 188 B.R. 140, 143 (Bankr.E.D.Pa.1995); In re Mall at One Associates, L.P., 185 B.R. 1009, 1016. It “may or may not be exercised depending upon the equities of the particular situation.” Starnes v. United States, 159 B.R. 748, 750 (Bankr.W.D.N.C.1993). In determining whether to undertake a section 505(a) review, a number of factors are considered relevant, including the following: (1) the complexity of the tax issue to be decided; (2) the need to administer the bankruptcy case in an orderly and efficient manner; (3) the burden on the bankruptcy court’s docket;" }, { "docid": "22211429", "title": "", "text": "claim, as we have held, and then intended that the determinations should be prohibited by the Declaratory Judgment Act. Affirmed, (£ | KEYNUMBERSYSTEM^ . Section 2a(2A) of the Act, 11 U.S.C. § ll(a)(2A) is an amendment enacted in 1966. . S.Rept.No.999, 89th Cong., 2d Sess. (1966) in 2 U.S.Code Cong. & Admin.News pp. 2442, 2452 (1966). . Other courts have also stated that the bankruptcy courts have jurisdiction to determine tax liability where the government has not filed a proof of claim. In the Matter of John West Gwilliam, 519 F.2d 407 (9th Cir. 1975); In re Murphy, 381 F.Supp. 813, 816-817 (N.D. Ala. 1974) (reversing on other grounds); In re Savage, 329 F.Supp. 968, 969 (C.D.Calif.1971); In re Curtis, 69-1 U.S. Tax Cas. fl 9433 (W.D. Mich. 1969) (referee). See also In re Century Vault Co., 416 F.2d 1035, 1041 (3rd Cir. 1969); In re Standard Milling Co., Inc., 324 F.Supp. 386 (N.D.Tex.1970). Contra, In re Zook, 74-1 U.S. Tax Cas. fi 9399 (C.D.Calif.1974). . Kennedy, The Bankruptcy Amendments of 1966, 1 Ga.L.Rev. 149, 159 n. 41 and 172-173 (1967) and W. Plumb. Report on Federal Income Tax Returns and Liabilities in Bankruptcy at 127, reprinted in Report on the Commission on Bankruptcy Laws of the United States Part III (1973). . See generally Hawkes v. United States, 467 F.2d 787, 794 (6th Cir. 1972); United States v. Lake, 406 F.2d 941, 947 (5th Cir. 1969). . The Rules of Bankruptcy Procedure were reported to Congress and became effective October 1, 1973. . In re Durensky, 377 F.Supp. 798, 803-805 (N.D.Tex.1974). . 26 U.S.C. § 7421(a). . In Enochs v. Williams Packing Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), the Court announced a two-part test that must be met in order to grant a pre-enforcement injunction against the assessment or collection of taxes. First, it must be clear that under no circumstances could the government ultimately prevail and, second, equity jurisdiction must otherwise exist. . 11 U.S.C. § 35(c). . See W. Plumb, Tax Procedures in Bankruptcy, 88 Harv.L.Rev. 1360, 1398-1399 (1975). It is" }, { "docid": "11450073", "title": "", "text": "adjudicated by a judicial or administrative tribunal of competent jurisdiction . ” The Court of Appeals for the Ninth Circuit has interpreted the above-quoted provision as conferring jurisdiction on the bankruptcy court, whether the tax arose prior to or after bankruptcy, and whether or not a proof of claim has been filed for the tax. See Gwilliam v. United States, 519 F.2d 407, 408—411 (9th Cir. 1975); In Re Doiard, 519 F.2d 282, 286 (9th Cir. 1975). In Gwilliam the Ninth Circuit noted that the Fifth Circuit in Statmaster had interpreted the legislative history of § ll(a)(2A) differently, but cited other authorities supporting its view such as In the Matter of Century Vault Co., 416 F.2d 1035, 1041 (3rd Cir. 1969); In Re Durensky, 377 F.Supp. 798 (N.D.Texas 1974); and 3A Collier On Bankruptcy, 14th Edition Rev. 1972, ¶ 64.407[3] (pages 2334-35). Other courts have since adopted the Ninth Circuit’s interpretation of § ll(a)(2A). See McKenzie v. United States, 536 F.2d 726, 728-729 (7th Cir. 1976); Bostwick v. United States, 521 F.2d 741 (8th Cir. 1975). The controversy presented by the trustee’s motion is real and actual. The trustee has been warned that he may be subject to personal liability if he does not comply with the franchise tax laws which the Board deems applicable; and a resolution of the issues presented is necessary before this bankruptcy proceeding may be closed. This court concludes that it has jurisdiction to determine the issues. LIABILITY OF THE TRUSTEE FOR FRANCHISE TAXES Section 23151 of the California Revenue and Taxation Code provides as follows: “§ 23151. Imposition of tax on net income; rate; minimum tax (a) With the exception of financial corporations, every corporation doing business within the limits of this state and not expressly exempted from taxation by the provisions of the Constitution of this state or by this part, shall annually pay to the state, for the privilege of exercising its corporate franchises within this state, a tax according to or measured by its net income, to be computed at the rate of 7.6 percent upon the basis of its net" }, { "docid": "22235826", "title": "", "text": "to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction . . . . (12) Discharge or refuse to discharge bankrupts, set aside discharges, determine the dischargeability of debts, and render judgments thereon . We note that the Eighth and Ninth Circuits, both relying heavily on the district court’s opinion in the instant case, have recently decided that bankruptcy courts possess jurisdiction under section 2a(2A) to entertain applications such as that of Durensky here. In re Bostwick, 8 Cir. 1975, 521 F.2d 741; In re Gwilliam, 9 Cir. 1975, 519 F.2d 407. See In re Murphy, N.D.Ala.1974, 381 F.Supp. 813, 816; In re Savage, C.D.Cal. 1971, 329 F.Supp. 968, 969; see also Plumb, The Tax Recommendations of the Commission on the Bankruptcy Laws — Tax Procedures, 88 Harv.L.Rev. 1360/ 1389-99 (1975); Plumb, The Tax Recommendations of the Commission on the Bankruptcy Laws — Priority and Dischargeability of Tax Claims, 59 Cornell L.Rev. 991, 1050-54 (1974); 9 Mertens, Law of Income Taxation, § 54.03; but see In re Zook, C.D.Cal.1974, 74-1 U.S. Tax Cas. ¶ 9399; In re O’Ffill, D.Kan.1973, 368 F.Supp. 345, 351. We note also that the orders reviewed in Bostwick and Gwilliam arose in different procedural contexts than the instant order, so that the Eighth and Ninth Circuits did not encounter the difficulty that we must resolve here. In Gwilliam, the bankruptcy judge concluded not only that he had jurisdiction to determine the dischargeability of the bankrupt’s tax liabilities, but also that those liabilities were in fact discharged; the district court reversed the order of the bankruptcy judge on the ground of want of jurisdiction, and it was that order which the Ninth Circuit reviewed. In Bost-wick, as in this case, the bankruptcy judge concluded only that he had jurisdiction over the matter and enjoined the Government from proceeding against the bankrupt pending a hearing on the question of dischargeability. Upon review, however, the district court affirmed the bankruptcy judge’s order instead of concluding, as did the district court here, that the Government’s petition for review was premature. The Eighth Circuit did" }, { "docid": "23060749", "title": "", "text": "phrase “contested before and adjudicated by” in Section 2(a)(2A), found the debtor’s appearance and actual litigation before a competent tribunal necessary to preclude bankruptcy court determination of the issue. In re Century Vault Company, Inc., 416 F.2d 1035, 1040-1041 (3rd Cir. 1969); City of Amarillo v. Eakens, 399 F.2d 541, 543-544 (5th Cir. 1968), cert. denied 393 U.S. 1051, 89 S.Ct. 688, 21 L.Ed.2d 692 (1969). Courts and commentators have recognized as the policy behind this rule an intent to protect the creditors of a defaulting debtor. General creditors, who would have had no opportunity to be heard in the default proceeding, would often be the parties in fact harmed by a debtor’s inability to discharge the tax obligations. These creditors should not be bound by the inaction of a debtor who, as long as the value of his non-exempt property exceeded the amount of the tax obligation, likely had little actual stake in the outcome. See 1 Collier on Bankruptcy § 2.22A at 220 (14th Ed. 1976); In re Century Vault Company, Inc., supra, 416 F.2d at 1041. § 505. Determination of tax liability (a) The court may determine the amount or legality of any unpaid tax, whether or not previously assessed, that has not been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction before the commencement of the case under this title. The legislative history of § 505 makes clear that Congress did not intend a default judgment to preclude the bankruptcy court’s determination of the amount and validity of State taxes and penalties. The version of § 505 which passed the House in February of 1978 retained the language of § 2(a)(2A) of the Bankruptcy Act, barring bankruptcy court determination only where the tax had been previously “contested before and adjudicated by” a judicial or administrative tribunal. But after the bill had reached the Senate, the Senate Finance Committee amended the section to bar the bankruptcy court from making a determination whenever a judicial or administrative tribunal had previously “determined” the tax liability. The Finance Committee’s stated purpose in proposing this amendment" }, { "docid": "23161413", "title": "", "text": "whether or not a proof of claim has been filed for the tax.” (Emphasis supplied.) See In re Durensky, 377 F.Supp. 798 (N.D.Tex.1974), [hereinafter Durensky] for District Judge Mahon’s able, exhaustive review and analysis of the legislative history of § 2a(2A) supporting the Collier view that whether or not a proof of claim has been filed is immaterial. We subscribe to the Collier-Durensky view, while not unmindful that two courts have interpreted the legislative history of § ll(a)(2A) differently from the position we take today. In re Statmaster Corp., 465 F.2d 978 (5th Cir. 1972) , [hereinafter Statmaster ] and In re O’Ffill, 368 F.Supp. 345, 351 (D.Kan. 1973) , [hereinafter O’Ffill]. These cases only consider, cite, and rely upon Report 999 of the Senate Judiciary Committee stating that the amendment: “[M]akes no change in existing law under which a bankruptcy court cannot adjudicate the merits of any claim, including a federal tax claim, which has not been asserted in the bankruptcy proceeding by filing a proof of claim.” Sen.Rept. 999, 89th Cong. (1966). Statmaster noted the inconsistency between language of the report and the direct expressed language of § ll(a)(2A) to the contrary and ultimately found it unnecessary to decide the jurisdictional issue. O’Ffill acknowledges that § ll(a)(2A) “grant[s] the bankruptcy court jurisdiction to hear and determine any question arising as to the amount and legality of any unpaid tax which had not been judicially or administratively determined by a tribunal of competent jurisdiction,” but then performs judicial surgery by adding: “This statute, however, presupposes that the merits of the tax claim have been drawn into issue by the filing of a proof of claim by the government in the bankruptcy proceeding.” We deem this jurisdictional prerequisite to be mere dicta and not necessary to the ultimate holding of the court since the court expressly declined to “consider the [jurisdictional issue] certified for review.” Durensky at 800 through 802 reviews the entire legislative history of the House sponsored 1966 amendment to § 11(a) under discussion. Therefrom we are satisfied that Senate Report 999 does not speak the consensus of" }, { "docid": "11450072", "title": "", "text": "which was opposed by the Board, came on for hearing on May 2, 1979, at which time certain evidence was received and the court took judicial notice of all of the records, files, and pleadings in this cause. The parties also orally agreed that neither party had any further evidence to offer and that the court could proceed to a decision without affording the parties an opportunity to present any further evidence. JURISDICTION The Board seems to contend that this court has no jurisdiction to determine the issues raised by the trustee in his motion, relying upon In Re St atm as ter Corpo ration, 332 F.Supp. 1248, 1249 (S.D.Fla. 1971), affirmed 465 F.2d 978 (5th Cir. 1972). However, Section 2a(2A) of the Bankruptcy Act, 11 U.S.C. § ll(a)(2A) expressly confers jurisdiction upon courts of bankruptcy to: “Hear and determine, or cause to be heard and determined, any question arising as to the amount or legality of any unpaid tax, whether or not previously assessed, which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction . ” The Court of Appeals for the Ninth Circuit has interpreted the above-quoted provision as conferring jurisdiction on the bankruptcy court, whether the tax arose prior to or after bankruptcy, and whether or not a proof of claim has been filed for the tax. See Gwilliam v. United States, 519 F.2d 407, 408—411 (9th Cir. 1975); In Re Doiard, 519 F.2d 282, 286 (9th Cir. 1975). In Gwilliam the Ninth Circuit noted that the Fifth Circuit in Statmaster had interpreted the legislative history of § ll(a)(2A) differently, but cited other authorities supporting its view such as In the Matter of Century Vault Co., 416 F.2d 1035, 1041 (3rd Cir. 1969); In Re Durensky, 377 F.Supp. 798 (N.D.Texas 1974); and 3A Collier On Bankruptcy, 14th Edition Rev. 1972, ¶ 64.407[3] (pages 2334-35). Other courts have since adopted the Ninth Circuit’s interpretation of § ll(a)(2A). See McKenzie v. United States, 536 F.2d 726, 728-729 (7th Cir. 1976); Bostwick v. United States, 521 F.2d 741 (8th Cir." }, { "docid": "18722419", "title": "", "text": "or not previously assessed, whether or not paid, and whether or not contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction. (2) The court may not so determine— (A) the amount or legality of a tax, fine, penalty, or addition to tax if such amount or legality was contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction before the commencement of the case under this title; or.... 11 U.S.C. § 505(a). This section authorizes a bankruptcy court to redetermine a tax previously determined if such prior determination was not contested. At the time the Circuit Court’s order of December 14, 1984 was entered, the debtor was no longer an active litigant in the case, a default judgment having been entered against him some three years earlier. The question then becomes whether a default judgment entered in a Court of competent jurisdiction can be considered a contested matter. The answer is no. As stated by one court: Judicial interpretation of the predecessor of § 505 indicates that Congress did not consider a default proceeding to be a contest which would prevent the bankruptcy court from determining the amount or validity of a tax. Section 2(a)(2A) of the Bankruptcy Act of 1898, former 11 U.S.C. § ll(a)(2A), established a test for bankruptcy court power identical to that established by § 505(a), at least with respect to unpaid taxes. Courts, in determining the meaning of the phrase “contested before and adjudicated by” in section 2(a)(2A), found the debtor’s appearance and actual litigation before a competent tribunal necessary to preclude bankruptcy court determination of the issue. In re Century Vault Company, Inc., 416 F.2d 1035, 1040-41 (3rd Cir.1969); City of Amarillo v. Eakens, 399 F.2d 541, 543-44 (5th Cir.1968), cert. denied 393 U.S. 1051, 89 S.Ct. 688, 21 L.Ed.2d 692 (1969). Courts and commen tators have recognized as the policy behind this rule an intent to protect the creditors of a defaulting debtor. General creditors, who would have had no opportunity to be heard in the default proceeding, would often be the parties in fact harmed" }, { "docid": "23060748", "title": "", "text": "administrative tribunal of competent jurisdiction. (2) The Court may not so determine— (A) the amount or legality of a tax, fine, penalty or addition to tax if such amount or legality was contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction before the commencement of the case under this title; ... The question for determination is whether Congress intended that a tax liability which was the subject of a default judgment in a State court be considered one which “was contested before and adjudicated by” a judicial tribunal within the meaning of § 505(a)(2)(A). Judicial interpretation of the predecessor of § 505 indicates that Congress did not consider a default proceeding to be a contest which would prevent the bankruptcy court from determining the amount or validity of a tax. Section 2(a)(2A) of the Bankruptcy Act of 1898, former 11 U.S.C. § ll(a)(2A), established a test for bankruptcy court power identical to that established by § 505(a), at least with respect to unpaid taxes. Courts, in determining the meaning of the phrase “contested before and adjudicated by” in Section 2(a)(2A), found the debtor’s appearance and actual litigation before a competent tribunal necessary to preclude bankruptcy court determination of the issue. In re Century Vault Company, Inc., 416 F.2d 1035, 1040-1041 (3rd Cir. 1969); City of Amarillo v. Eakens, 399 F.2d 541, 543-544 (5th Cir. 1968), cert. denied 393 U.S. 1051, 89 S.Ct. 688, 21 L.Ed.2d 692 (1969). Courts and commentators have recognized as the policy behind this rule an intent to protect the creditors of a defaulting debtor. General creditors, who would have had no opportunity to be heard in the default proceeding, would often be the parties in fact harmed by a debtor’s inability to discharge the tax obligations. These creditors should not be bound by the inaction of a debtor who, as long as the value of his non-exempt property exceeded the amount of the tax obligation, likely had little actual stake in the outcome. See 1 Collier on Bankruptcy § 2.22A at 220 (14th Ed. 1976); In re Century Vault Company, Inc., supra," }, { "docid": "23161412", "title": "", "text": "heard and determined, any question arising as to the amount or legality of any unpaid tax, whether or not previously assessed, which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction . . ..” As is noted in 3A Collier on Bankruptcy K 64.407[3] at 2234-35 (14th ed. rev. 1972): “The jurisdictional grant under the first part of § 2a(2A) to hear and determine ‘any question arising as to the amount or legality of any unpaid tax’ is limited by two-factors only. First of all, the tax must not have been paid; the words used in this part are ‘any unpaid tax.’ Secondly, the disputed tax item must not have been contested and adjudicated prior to bankruptcy. Thus, the immaterial elements not affecting the court’s jurisdiction include the following: (1) whether or not an assessment was made before bankruptcy; (2) whether the adjudication was by a judicial or administrative tribunal; (3) whether the tax arose prior to or after bankruptcy . . .; and, [4] whether or not a proof of claim has been filed for the tax.” (Emphasis supplied.) See In re Durensky, 377 F.Supp. 798 (N.D.Tex.1974), [hereinafter Durensky] for District Judge Mahon’s able, exhaustive review and analysis of the legislative history of § 2a(2A) supporting the Collier view that whether or not a proof of claim has been filed is immaterial. We subscribe to the Collier-Durensky view, while not unmindful that two courts have interpreted the legislative history of § ll(a)(2A) differently from the position we take today. In re Statmaster Corp., 465 F.2d 978 (5th Cir. 1972) , [hereinafter Statmaster ] and In re O’Ffill, 368 F.Supp. 345, 351 (D.Kan. 1973) , [hereinafter O’Ffill]. These cases only consider, cite, and rely upon Report 999 of the Senate Judiciary Committee stating that the amendment: “[M]akes no change in existing law under which a bankruptcy court cannot adjudicate the merits of any claim, including a federal tax claim, which has not been asserted in the bankruptcy proceeding by filing a proof of claim.” Sen.Rept. 999, 89th Cong. (1966). Statmaster" }, { "docid": "15145141", "title": "", "text": "jurisdiction to: “Hear and determine, . . . any question arising as to the amount or legality of any unpaid tax, whether or not previously assessed, which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction ti The government’s arguments to the contrary notwithstanding, we agree with the analysis of District Judge Mahon of the Northern District of Texas, In Re Durensky, 377 F.Supp. 798, 801, and that of the Circuit Courts in Gwilliam, 519 F.2d 407 at 409—410 and Bostwick, 521 F.2d 741 at 743-744, holding that the bankruptcy court possesses jurisdiction under Section 2(a)(2A) “to determine the amount and legality of the federal taxes due and owing by the Bankrupt for the years as alleged and to determine the Bankrupt’s liability and provable indebtedness therefore . . . Gwilliam, supra, at 410. We further hold that in conferring jurisdiction under Section 2(a)(2A), Congress implicitly waived the sovereign immunity of the United States. In addition, Section 17 of the Bankruptcy Act, 11 U.S.C. § 35 provides, inter alia, that a discharge in bankruptcy releases the bankrupt from all of his provable debts except taxes which become due and owing within three years preceding bankruptcy, except for taxes “which the bankrupt has collected or withheld from others as required by the laws of the United States Section 17(c) further provides that the bankrupt may file an application with the court for “the determination of the dischargeability of any debt”, and that “After hearing upon notice, the court shall determine the dischargeability of any debt for which an application for such determination has been filed, shall make such orders as are necessary to protect or effectuate a determination that any debt is dischargeable and, if any debt is determined to be nondischargeable, shall determine the remaining issues, render judgment, and make all orders necessary for the enforcement thereof.” (Emphasis added). We hold that Section 17(c), in explicitly allowing the bankrupt to file an application for the determination of the dischargeability of “any debt” waives the sovereign immunity of the United States" }, { "docid": "23161411", "title": "", "text": "by IRS is apparently an attempt to avoid the Bankruptcy Court’s determination of the Bankrupt’s federal tax liability and indebtedness and the ultimate discharge in bankruptcy of a bankrupt’s eligible tax indebtedness, and we believe is directly opposed to the express language of § 35(a) and (c), and the policy flowing therefrom to allow a bankrupt to start over and to enhance the individual’s chances of financially rehabilitating himself by eliminating his old tax debts. In re Braund, 289 F.Supp. 604 (C.D.Cal.1968), aff’d sub nom. United States v. McGugin, 423 F.2d 718 (9th Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970), [hereinafter Braund ] and In re Savage, 329 F.Supp. 968, 969 (C.D.Cal.1971), [hereinafter Savage]. During 1966, Congress in its intent and attempt to fortify the bankruptcy court with ample tools to deal with tax indebtedness adopted § ll(a)(2A) and § 35(a). Specifically, the new subsection (2A) extended the expressed “invested . jurisdiction at law and in equity” of the bankruptcy courts to: “Hear and determine, or cause to be heard and determined, any question arising as to the amount or legality of any unpaid tax, whether or not previously assessed, which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction . . ..” As is noted in 3A Collier on Bankruptcy K 64.407[3] at 2234-35 (14th ed. rev. 1972): “The jurisdictional grant under the first part of § 2a(2A) to hear and determine ‘any question arising as to the amount or legality of any unpaid tax’ is limited by two-factors only. First of all, the tax must not have been paid; the words used in this part are ‘any unpaid tax.’ Secondly, the disputed tax item must not have been contested and adjudicated prior to bankruptcy. Thus, the immaterial elements not affecting the court’s jurisdiction include the following: (1) whether or not an assessment was made before bankruptcy; (2) whether the adjudication was by a judicial or administrative tribunal; (3) whether the tax arose prior to or after bankruptcy . . .; and, [4]" }, { "docid": "23161414", "title": "", "text": "noted the inconsistency between language of the report and the direct expressed language of § ll(a)(2A) to the contrary and ultimately found it unnecessary to decide the jurisdictional issue. O’Ffill acknowledges that § ll(a)(2A) “grant[s] the bankruptcy court jurisdiction to hear and determine any question arising as to the amount and legality of any unpaid tax which had not been judicially or administratively determined by a tribunal of competent jurisdiction,” but then performs judicial surgery by adding: “This statute, however, presupposes that the merits of the tax claim have been drawn into issue by the filing of a proof of claim by the government in the bankruptcy proceeding.” We deem this jurisdictional prerequisite to be mere dicta and not necessary to the ultimate holding of the court since the court expressly declined to “consider the [jurisdictional issue] certified for review.” Durensky at 800 through 802 reviews the entire legislative history of the House sponsored 1966 amendment to § 11(a) under discussion. Therefrom we are satisfied that Senate Report 999 does not speak the consensus of the Congress and we disregard it rather than to injudiciously batter the expressed language of § ll(a)(2A) to a nullity. We hold that the Bankruptcy Court had jurisdiction under § ll(a)(2A) to determine the amount and legality of the federal taxes due and owing by the Bankrupt for the years as alleged and to determine the Bankrupt’s liability and provable indebtedness therefor, under 11 U.S.C. §§ 103 and 104, notwithstanding the lack or absence of a prior claim therefor or other proof thereof by IRS. Durensky; In re Simplex Sales Co., 336 F.Supp. 672 (S.D.Fla.1972). Durensky, at 800, cites, among others, In re Murphy ¶ 64,755 GCH Bankr.L.Rep. (Bankruptcy Ct.Ala.1972), (remanded for dismissal, 355 F.Supp. 1235 (N.D.Ala.1973) (appeal to Circuit Court dismissed by IRS motion); and In the Matter of Century Vault Co., 416 F.2d 1035 (3rd Cir. 1969), where at 1041 the court says: “[§ ll(a)(2A)] makes clear that the bankruptcy court has jurisdiction to hear and determine any question arising as to the amount of any unpaid tax if that question has not" }, { "docid": "13085128", "title": "", "text": "were available for contesting the tax, which the bankrupt failed to pursue. § 2a(2A) of the Bankruptcy Act provides in pertinent part as follows: “ . . .a. The courts of the United States hereinbefore defined as courts of bankruptcy . . . are hereby invested . . with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in proceedings under this Act . . . to — ■ (2A) Hear and determine, or cause to be heard and determined, any question arising as to the amount or legality of any unpaid tax, whether or not previously assessed, which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction, and in respect to any tax, whether or not paid, when any such question has been contested and adjudicated by a judicial or administrative tribunal of competent jurisdiction and the time for appeal or review has not expired, to authorize the receiver or the trustee to prosecute such appeal or review.” 11 U.S.C. § ll(a)(2A) (1976) The jurisdictional grant of § 2a(2A) was formerly contained in § 64a(4), and prior to 1938, in § 64a. The body of law that developed under these two predecessor sections was to the effect that the bankruptcy court had power to examine into the validity and amount of taxes legally due and owing to a sovereign unless the matter had been previously determined by a state or federal court. 3A Collier on Bankruptcy § 64.407 at 2205-10 (14th Ed. 1967); New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284 (1906); In re Thermiodyne Radio Corporation, 26 F.2d 716 (D.Del.1928); In re E. C. Fisher Corp., 229 F. 316 (D.Mass.1915). This power to redetermine the amount of a tax claim existed whether the claim was secured by a lien or not. 3A Collier, supra at 2212; cf. In re Century Vault Company, Inc., 416 F.2d 1035, 1040-41 (3d Cir. 1969) (interpreting § 2a(2A)). While the aforementioned body of law was developing, the courts of the Seventh Circuit" }, { "docid": "15145140", "title": "", "text": "may be granted in a case of actual controversy “except with respect to federal taxes”. Finally, the government argues that the bankruptcy court, and the district court, erred in requiring the IRS to apply the last $1,313.12 in tax payments to the non-dischargeable trust fund indebtedness. The issues presented by the government in this case have been raised and rejected in several thorough and well reasoned recent opinions; see, Bostwick v. United States, 521 F.2d 741 (8th Cir., 1975); Gwilliam v. United States, 519 F.2d 407 (9th Cir., 1975); In Re Durensky, 377 F.Supp. 798 (N.D.Tex. 1974), aff’d 519 F.2d 1024 (5th Cir., 1975). Another detailed discussion of these issues by this court is therefore unnecessary. With respect to the government’s sovereign immunity argument, it is axiomatic that the sovereign immunity of the United States can be waived impliedly, as well as explicitly, by statute. See, Schlafly v. Volpe, 495 F.2d 273, 280-282 (7th Cir., 1974). In this regard, Section 2(a)(2A) of the Bankruptcy Act, 11 U.S.C. § ll(a)(2A), provides that courts of bankruptcy have jurisdiction to: “Hear and determine, . . . any question arising as to the amount or legality of any unpaid tax, whether or not previously assessed, which has not prior to bankruptcy been contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction ti The government’s arguments to the contrary notwithstanding, we agree with the analysis of District Judge Mahon of the Northern District of Texas, In Re Durensky, 377 F.Supp. 798, 801, and that of the Circuit Courts in Gwilliam, 519 F.2d 407 at 409—410 and Bostwick, 521 F.2d 741 at 743-744, holding that the bankruptcy court possesses jurisdiction under Section 2(a)(2A) “to determine the amount and legality of the federal taxes due and owing by the Bankrupt for the years as alleged and to determine the Bankrupt’s liability and provable indebtedness therefore . . . Gwilliam, supra, at 410. We further hold that in conferring jurisdiction under Section 2(a)(2A), Congress implicitly waived the sovereign immunity of the United States. In addition, Section 17 of the Bankruptcy Act, 11 U.S.C. §" }, { "docid": "13085129", "title": "", "text": "11 U.S.C. § ll(a)(2A) (1976) The jurisdictional grant of § 2a(2A) was formerly contained in § 64a(4), and prior to 1938, in § 64a. The body of law that developed under these two predecessor sections was to the effect that the bankruptcy court had power to examine into the validity and amount of taxes legally due and owing to a sovereign unless the matter had been previously determined by a state or federal court. 3A Collier on Bankruptcy § 64.407 at 2205-10 (14th Ed. 1967); New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284 (1906); In re Thermiodyne Radio Corporation, 26 F.2d 716 (D.Del.1928); In re E. C. Fisher Corp., 229 F. 316 (D.Mass.1915). This power to redetermine the amount of a tax claim existed whether the claim was secured by a lien or not. 3A Collier, supra at 2212; cf. In re Century Vault Company, Inc., 416 F.2d 1035, 1040-41 (3d Cir. 1969) (interpreting § 2a(2A)). While the aforementioned body of law was developing, the courts of the Seventh Circuit were maintaining a contrary view. These decisions primarily held that while the bankruptcy court could examine into the validity of a tax claim, it had no jurisdiction to redetermine the amount where excessive valuations were in dispute. In re 168 Adams Bldg. Corporation, 105 F.2d 704 (7th Cir. 1939); In re Schach, 17 F.Supp. 437 (N.D.Ill.1936); In re Gould Mfg. Co., 11 F.Supp. 644 (E.D.Wis.1935). It was because of the development of this minority view that a proposal was made during legislative consideration of the Chandler Act .that would have strengthened the bankruptcy court’s power to redetermine the amount of tax claims. The proposal, however, was not enacted. 3A Collier, supra, at 2214-25. Shortly after the enactment of the Chandler Act, the United States Supreme Court decided Arkansas Corporation Commission v. Thompson, 313 U.S. 132, 61 S.Ct. 888, 85 L.Ed. 1244 (1941). This case involved a railroad in reorganization proceedings. The Corporation Commission, a state agency vested with complete control over valuation and assessment of property and with full power to summon witnesses and hear" }, { "docid": "23161415", "title": "", "text": "the Congress and we disregard it rather than to injudiciously batter the expressed language of § ll(a)(2A) to a nullity. We hold that the Bankruptcy Court had jurisdiction under § ll(a)(2A) to determine the amount and legality of the federal taxes due and owing by the Bankrupt for the years as alleged and to determine the Bankrupt’s liability and provable indebtedness therefor, under 11 U.S.C. §§ 103 and 104, notwithstanding the lack or absence of a prior claim therefor or other proof thereof by IRS. Durensky; In re Simplex Sales Co., 336 F.Supp. 672 (S.D.Fla.1972). Durensky, at 800, cites, among others, In re Murphy ¶ 64,755 GCH Bankr.L.Rep. (Bankruptcy Ct.Ala.1972), (remanded for dismissal, 355 F.Supp. 1235 (N.D.Ala.1973) (appeal to Circuit Court dismissed by IRS motion); and In the Matter of Century Vault Co., 416 F.2d 1035 (3rd Cir. 1969), where at 1041 the court says: “[§ ll(a)(2A)] makes clear that the bankruptcy court has jurisdiction to hear and determine any question arising as to the amount of any unpaid tax if that question has not been contested prior to bankruptcy. The fact that a proof of claim has or has not been filed is immaterial. See 1 Collier on Bankruptcy § 2.-22A at 214 — 215 (14th ed. 1967).” See Murphy v. IRS, 1 Bankr. Court Dec. 63 (N.D.Ala. March 8, 1974) (No. 14357-M). Section 35(a), as amended in 1966, contains no explicit jurisdictional grant to the bankruptcy courts, but does provide for the discharge in bankruptcy as a provable debt of the bankrupt of federal taxes “due and owing by the bankrupt” for more than three years. Several district courts faced IRS objections to the bankruptcy court’s jurisdiction to determine dischargeability of unpaid federal taxes wherein the IRS contended that without its filing of a claim for unpaid taxes, there was no existing controversy nor waiver of sovereign immunity; hence the Bankruptcy Court was without jurisdiction. Each time the contentions were denied as being without merit. The earliest of these cases was Braund. The bankrupt in that case sought to restrain IRS’s enforcement of tax liens against property acquired" } ]

[ { "docid": "14049219", "title": "", "text": "Stawicki as a place to sit down, and that he readily agreed. The police did use several strategies to induce Stawicki’s confession, including withholding the fact that Esser’s body had been found and subjecting him to a variation on the “Christian burial speech,” Brewer v. Williams, 430 U.S. 387, 392-93, 97 S.Ct. 1232, 1236, 51 L.Ed.2d 424 (1977). Interrogation strategies such as these, however, do not automatically render a confession involuntary. Their use must instead be considered in conjunction with the rest of the circumstances surrounding a confession to determine whether the confession is voluntary. See Holleman v. Duckworth, 700 F.2d 391, 396 (7th Cir.), cert. denied, 464 U.S. 834, 104 S.Ct. 116, 78 L.Ed.2d 116 (1983). In this case, although Detective Sobczyk intended to appeal to Stawicki’s emotions when he asked him to reveal the location of Esser’s body so that she could receive a proper burial, Stawicki testified at the state suppression hearing that he thought Sobczyk’s religious inferences were “stupid.” This does not appear to be a case, therefore, where police strategies and inducements so overbear a suspect’s will as to render a confession involuntary. The final factors to be considered are that Stawicki’s arrest was legal, he was fully advised of his Miranda rights before he gave his confession, and he testified that he understood those rights. The totality of these circumstances indicates that Stawicki’s confession was voluntary. C. Voluntariness of Waiver Stawicki further argues that his confession should have been suppressed because he never made a knowing and intelligent waiver of his Miranda rights. As the respondents concede, the police did not obtain either a written or oral waiver of Stawicki’s Miranda rights after advising him of those rights and before questioning him about Esser’s disappearance. The Supreme Court held in Miranda v. Arizona that once a suspect is advised of his rights and given an opportunity to exercise them, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). The prosecution bears a heavy" } ]

[ { "docid": "21577742", "title": "", "text": "will be adjudged Voluntary’ if the government demonstrates that under the totality of the circumstances and by a preponderance of the evidence that it was not secured through psychological or physical intimidation but rather was the ‘product of a rational intellect and free will.’ ” Haddon, 927 F.2d at 945 (quoting United States v. Holleman, 575 F.2d 139, 142 (7th Cir.1978)); see also United States v. Buckley, 4 F.3d 552, 559 (7th Cir.1993), cert. denied — U.S. -, 114 S.Ct. 1084, 127 L.Ed.2d 400 (1994); McGuire, 957 F.2d at 315. The crucial question is whether “‘the defendant’s will was overborne at the time he confessed’ ” (United States v. Hocking, 860 F.2d 769, 774 (7th Cir.1988) (quoting Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963)); see also McGuire, 957 F.2d at 315; Haddon, 927 F.2d at 945-46; United States v. Fazio, 914 F.2d 950, 956 (7th Cir.1990)), and the answer lies in whether the authorities obtained the statement through coercive means. Buckley, 4 F.3d at 559 (citing Colorado v. Connelly, 479 U.S. 157, 166— 67,107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986)). We consider the issue of official coercion from the perspective of a reasonable person in the defendant’s position at the time of the statement. Haddon, 927 F.2d at 946; Fazio, 914 F.2d at 955. We look both to “the characteristics of the accused and the details ' of the interrogation” in determining whether a reasonable person would feel coerced. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). We specifically consider “the age of the defendant, his lack of education or low intelligence, the lack of any advice to him of his constitutional rights, the length of his detention, the repeated and prolonged nature of the questioning, and the use of physical punishment.” Pharr v. Gudmanson, 951 F.2d 117, 120 (7th Cir.1991); see also Church, 970 F.2d at 404. Montgomery initially argues that the district court should not have relied on the officers’ assessments that he was not under the influence of alcohol or drugs." }, { "docid": "6622270", "title": "", "text": "voluntarily consented to it, and, in the alternative, because it was justified by exigent circumstances. Id. at 1250-53. Because we agree with her conclusion as to consent, we find it unnecessary to reach the question of exigent circumstances. A warrantless search or entry to secure the premises is constitutional if conducted pursuant to the valid consent of a person in control of the premises. See generally Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The government has the burden of proving consent voluntarily given by a preponderance of the evidence. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797 (1968) in light of “the totality of the surrounding circumstances,” Schneckloth v. Bustamonte, supra, 412 U.S. at 226, 93 S.Ct. at 2047. The district court’s findings, supported by the record, are that Martinez-Torres was capable of giving a voluntary consent. He is forty years old and has a sufficient understanding of English. He has been convicted on two previous occasions and is thus no “newcomer to the law,” United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976). He was resigned and calm during his conversation with Maraño, United States v. Sanchez, 635 F.2d 47, 60 (2d Cir.1980) and the tenor of the discussion was conversational. United States v. Price, 599 F.2d 494, 503 (2d Cir.1979). Agent Maraño told Martinez-Torres that he could obtain a warrant. This statement, clearly true in light of the ample evidence of illegal activity, does not vitiate the consent since advising a person of the fact that a search warrant can be obtained does not constitute coercion. United States v. Faruolo, 506 F.2d 490, 495 (2d Cir.1974); United States v. Lace, 669 F.2d 46, 52 (2d Cir.), cert. denied, - U.S.- , 103 S.Ct. 121, 74 L.Ed.2d 106 (1982). The defendants argue, however, that it is coercive for agents to seek consent to enter an apartment by stating a desire to avoid an armed confrontation. We disagree. It is hardly in the interests of occupants of such dwellings that" }, { "docid": "23028261", "title": "", "text": "first obtain the voluntary consent of the individual in question. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In conducting a search pursuant to a properly obtained, voluntary consent, however, the extent of the search must be confined to the terms of its authorization. United States v. Rackley, 742 F.2d 1266, 1271 (11th Cir.1984). “A suspect’s consent can impose limits on the scope of a search in the same way as do the specifications of a warrant,” and those limits serve to restrain the permissible boundaries of the search. United States v. Milian-Rodriguez, 759 F.2d 1558,1563 (11th Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 112 (1985). Whether a suspect voluntarily gave consent to a search is a question of fact to be determined by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. at 249-50, 93 S.Ct. at 2059; United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir.1984), vacated, 741 F.2d 1363, reinstated on reh’g, 764 F.2d 747 (11th Cir.1985) (en banc). The government bears the burden of proving both the existence of consent and that the consent was not a function of acquiescence to a claim of lawful authority but rather was given freely and voluntarily. United States v. Massell, 823 F.2d 1503, 1507 (11th Cir.1987). The district court’s factual findings as to whether or not voluntary consent was given may only be disturbed if they are clearly erroneous. Id.; United States v. Chemaly, 741 F.2d at 1353. Similarly, whether there were any limitations placed on the consent given and whether the search conformed to those limitations is to be determined by the totality of the circumstances. See United States v. Milian-Rodriguez, 759 F.2d at 1563-64. The trial court’s factual determinations as to these two issues are also due deference on appeal and will not be overturned unless clearly erroneous. See id. Accord United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986); United States v. Hardin, 710 F.2d 1231, 1236 (7th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 286, 78 L.Ed.2d 263 (1983); United States v." }, { "docid": "12132227", "title": "", "text": "States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). However, any incriminating statements made involuntarily would not be admissible at trial. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Locklear offers two reasons why his statements were involuntary: (1) the fact that the FBI agent failed to inform him that he was a target, and (2) threats allegedly made by Frantz or Orenstein. In assessing voluntariness, a court must examine the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). An incriminating statement is deemed involuntary only if induced by such duress or coercion that the suspect’s “will has been overborne and his capacity for self-determination critically impaired.” Id. at 225, 93 S.Ct. at 2047. Accord United States v. Seni, 662 F.2d 277, 281-82 (4th Cir.1981), cert, denied, 455 U.S. 950, 102 S.Ct. 1453, 71 L.Ed.2d 664 (1982). The government bears the burden of proving by a preponderance of the evidence that the statement was voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972). Although an appellate court must determine independently the ultimate issue of voluntariness, Beckwith v. United States, supra, 425 U.S. at 348, 96 S.Ct. at 1617; United States v. Dodier, 630 F.2d 232, 236 (4th Cir.1980), the findings of the district court as to the facts surrounding the confession are to be accepted unless clearly erroneous. United States v. Dodier, supra; United States v. Lewis, 528 F.2d 312, 313 (4th Cir.1975). At the suppression hearing, the trial judge heard conflicting testimony from Locklear and Agent Orenstein regarding an alleged threat in 1985 that if Locklear did not meet and cooperate with the agents at a specified time, he would lose his license. After assessing the witnesses’ credibility and demeanor, the trial judge found that the government made no such threat. Absent compelling evidence to the contrary, this Court declines to overturn a factual determination founded on witness demeanor and credibility. See United States v. Wolf, 813 F.2d 970, 975 (9th Cir. 1987)" }, { "docid": "11659390", "title": "", "text": "upon the whole record, we cannot conclude that the officer’s misstatement of the purpose of the interrogation, statements of disbelief, untrue suggestions of eyewitnesses, and statement that Evans would be returned to his cell amount to unconstitutional coercion as envisioned by Connelly, Jorgensen, and Rohrbach. See Jorgensen, 871 F.2d at 730 (creating fear of imminent arrest does not make confession involuntary); cf. McDonald v. Black, 820 F.2d 260 (8th Cir.1987) (confession of sixteen-year-old not involuntary); United States v. Wolf, 813 F.2d 970, 975 (9th Cir.1987) (expressing disbelief to elicit further statements did not make confession involuntary); Martin v. Wainwright, 770 F.2d 918, 927 (11th Cir.1985) (confession voluntary even though police misrepresented evidence), modified, 781 F.2d 185, cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986); De La Rosa v. Texas, 743 F.2d 299, 303 (5th Cir.1984) (time gap did not make confession involuntary), cert. denied, 470 U.S. 1065, 105 S.Ct. 1781, 84 L.Ed.2d 840 (1985). None of the actions by themselves would make the confession involuntary. The totality of the circumstances determines whether a confession was coerced. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Jorgensen, 871 F.2d at 725. We must therefore decide whether the cumulative effect of the officer’s actions resulted in an involuntary confession. That the police informed Evans several times of his right to an attorney and his right to remain silent weigh against a determination of coercion. Here, the warnings were part of the totality of the circumstances and, thus, it would be difficult to conclude that the police coerced the confession while at the same time warning Evans that he need not say anything. See Jorgensen, 871 F.2d at 730 (suspect never sought to terminate questioning). Accordingly, we affirm. . Mo.R.Civ.P. 83 governs transfer of criminal appellate cases. Mo.R.Crim.P. 30.27. Rule 83.02 provides that a case may be transferred by order of the court of appeals because of the general interest or importance of the question presented or to reexamine existing law. Rule 83.03 provides that if the court of appeals denies an application" }, { "docid": "23154332", "title": "", "text": "10 L.Ed.2d 513 (1963); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940)). The test for determining whether a statement is voluntary under the Due Process Clause “is whether the confession was ‘extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.’” Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976) (alterations in original) (quoting Bram, 168 U.S. at 542-43, 18 S.Ct. at 186-87). In Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), the Supreme Court held that “coercive police activity is a necessary predicate to the finding that a confession is not Voluntary’ within the meaning of the Due Process Clause.” Id. at 167, 107 S.Ct. at 521. The mere existence of threats, violence, implied promises, improper influence, or other coercive police activity, however, does not automatically render a confession involuntary. The proper inquiry “is whether the defendant’s will has been ‘overborne’ or his ‘capacity for self-determination critically impaired.’” United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir.1987) (quoting Schneckloth v. Bustamante, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973)). Any statement given freely and voluntarily without any compelling influences is admissible in evidence. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966). The Government bears the burden of proving by a preponderance of the evidence that the statement was voluntary. See Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972). To determine whether a defendant’s will has been overborne or his capacity for self-determination critically impaired, courts must consider “the ‘totality of the circumstances,’ including the characteristics of the defendant, the setting of the interview, and the details of the interrogation.” Pelton, 835 F.2d at 1071 (quoting United States v. Wertz, 625 F.2d 1128, 1134 (4th Cir.1980)); accord Ferguson v. Boyd, 566 F.2d 873, 877 (4th Cir.1977) (per curiam) (holding that “a finding of coercion and involuntariness must be" }, { "docid": "15011971", "title": "", "text": "admissible if the unwarned statement was voluntary. United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir.1988). In Sangineto-Miranda, this Court refused to suppress narcotics found in a suspect’s truck, even though the officers’ knowledge of the existence and location of the truck was proximately derived from the suspect’s unwarned and suppressible answer to a question from the officer. Id. at 1518. Because the unwarned statements in question involve a consent to search, we apply the test set forth in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and its progeny. Whether a consent to search is voluntary is a question of fact, to be proved by the government, id. at 222, 93 S.Ct. at 2045, and determined from the “totality of all the circumstances.” Id. at 227, 93 S.Ct. at 2048; see also United States v. Scott, 578 F.2d 1186, 1189 (6th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 201, 58 L.Ed.2d 182 (1978). Those circumstances include “evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights,” Bustamonte, 412 U.S. at 248, 93 S.Ct. at 2058, as well as evidence concerning “the youth of the accused,” “the length of detention,” “the repeated and prolonged nature of the questioning,” and “the use of physical punishment such as the deprivation of food or sleep.” Id. at 226, 93 S.Ct. at 2047. Further, the accused’s knowledge of his right to refuse to consent is only one factor — not a prerequisite — -in establishing voluntary consent. Id. at 249, 93 S.Ct. at 2059. In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Supreme Court applied Bustamonte to a defendant who consented to a search while in custody. Specifically stating that “the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search,” id. at 424, 96 S.Ct. at 828, the Watson Court identified a number of factors that led to a finding of voluntary consent, including the absence of any overt act or" }, { "docid": "23358665", "title": "", "text": "protects citizens against unreasonable searches and seizures, a search is not unreasonable if a person with a privacy interest in the item to be searched gives free and voluntary consent. See Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Kelly, 913 F.2d 261, 265 (6th Cir.1990). The government bears the burden of proving, through “clear and positive testimony” that the consent to search was given voluntarily. See Bustamonte, 412 U.S. at 248, 93 S.Ct. 2041; United States v. Salvo, 133 F.3d 943, 953 (6th Cir.1998); United States v. Riascos-Suarez, 73 F.3d 616, 625 (6th Cir.), cert. denied, — U.S. -, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996). Consent is voluntary when it is “unequivocal, specific and intelligently given, uncontaminated by any duress or coercion.” United States v. McCaleb, 552 F.2d 717, 721 (6th Cir.1977). Voluntariness is determined by examining the totality of the circumstances. See Bustamante, 412 U.S. at 227, 93 S.Ct. 2041; McCaleb, 552 F.2d at 720. Several factors should be examined in this determination. First, a court should examine the characteristics of the accused, including the age, intelligence, and education of the individual; whether the individual understands the right to refuse to consent; and whether the individual understands his or her constitutional rights. See United States v. Jones, 846 F.2d 358, 360 (6th Cir.1988). Second, a court should consider the details of the detention, including the length and nature of detention; the use of coercive or punishing conduct by the police, see Bustamonte, 412 U.S. at 226, 93 S.Ct. at 2059; and indications of “more subtle forms of coercion that might flaw [an individual’s] judgment.” United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Despite the district court’s finding that Ivy’s consent was voluntarily given, Ivy argues that, under the totality of the circumstances, his consent was a product of police coercion, and was not conferred voluntarily. Given the overwhelming evidence of coercion and intimidation employed by the police in obtaining Ivy’s signature on the consent form, we agree that the Government did" }, { "docid": "23053621", "title": "", "text": "these circumstances, we find that the officer’s extraneous questioning did not constitute an unreasonable seizure. B. Consent to Search Defendant next argues that even if the traffic stop was not unreasonably prolonged, he did not voluntarily consent to the search of his vehicle. The question of whether consent to search was freely and voluntarily given “is a question of fact to be determined from the totality of the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). To be valid, consent must be “unequivocally, specifically, and intelligently given, uncontaminated by any duress or coercion.” United States v. Worley, 193 F.3d 380, 386 (6th Cir.1999) (internal quotation marks omitted). Because it is a question of fact, this Court reviews the district court’s finding of free and voluntary consent for clear error. United States v. Carter, 378 F.3d 584, 587 (6th Cir.2004) (en banc). Consent to search is a well-established exception to the Fourth Amendment’s warrant requirement. See Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). “The government bears the burden of proving, through ‘clear and positive testimony’ that the consent to search was given voluntarily.” United States v. Beauchamp, 659 F.3d 560, 570 (6th Cir.2011) (quoting United States v. Salvo, 133 F.3d 943, 953 (6th Cir.1998)). Courts should consider several factors when evaluating whether consent was voluntary, including: the age, intelligence, and education of the suspect; whether the suspect understands the right to refuse consent, id. at 572; the length and nature of the detention; the use of coercive or punishing conduct by the police, Bustamonte, 412 U.S. at 226, 93 S.Ct. 2041; and indications of “more subtle forms of coercion that might flaw [the suspect’s) judgment,” United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). At the suppression hearing, Mercer testified that he stated to Defendant in reference to the vehicle, “You know we’re gonna want to look.” Mercer testified that Defendant then stated, “Go ahead.” On appeal, Defendant maintains that he never made this statement, but argues that if it" }, { "docid": "8159081", "title": "", "text": "the criminal justice system, United States v. Oglesby, 764 F.2d 1273, 1277-78 (7th Cir.1985); United States v. Anglian, 784 F.2d 765, 768-69 (6th Cir.), cert. denied, 479 U.S. 841, 107 S.Ct. 148, 93 L.Ed.2d 89 (1986), and whether the defendant initiated contact with law enforcement officials, Stawicki v. Israel, 778 F.2d 380 (7th Cir.1985), cert. denied, 479 U.S. 842, 107 S.Ct. 150, 93 L.Ed.2d 91 (1986). Of course, if Cahill’s testimony was induced by the government’s promise of immunity, it was involuntary and must be suppressed. United States v. Gonzalez, 736 F.2d 981 (4th Cir.1984). Because there was no offer of immunity, see supra, the cases cited by Cahill are inapposite. See United States v. Brimberry, 744 F.2d 580 (7th Cir.1984) (specific promise of immunity); United States v. Society of Independent Gasoline Marketers, 624 F.2d 461 (4th Cir.1979) (promise of immunity made by Justice Department lawyer). This finding, however, does not end the inquiry into the voluntariness of Cahill’s statements since he further contends that he made the November 8, 1984 and May 14, 1985 Statements only because he believed that he possessed immunity from prosecution. A defendant’s perception that he is providing testimony under a grant of immunity does not make his statement involuntary, unless the perception was reasonable. Cf. United States v. Shears, 762 F.2d 397, 401-03 (4th Cir.1985). With respect to the November 8, 1984 and May 14, 1985 Statements, Cahill’s perception was unreasonable. All the witnesses (with the exception of Cahill) testified that no offer of immunity was ever made. At the evi-dentiary hearing, Cahill’s attorney was unable to recall any specific statement made by Newman that would support Cahill’s perception that he had been granted immunity. Moreover, Cahill was told he was a possible defendant and signed a proffer letter, after Newman explained the differences between it and an offer of immunity, that clearly stated that there had been no offer or grant of immunity. The May 14, 1985 Statement was given under the same terms and conditions outlined in the proffer letter; therefore both statements given after Cahill had signed the proffer letter were" }, { "docid": "51557", "title": "", "text": "[or she] is entitled to a reliable and clear cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove by at least a preponderance of the evidence that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626-27, 30 L.Ed.2d 618 (1972); see Colorado v. Connelly, 479 U.S. 157, 169, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986). Where voluntariness is concerned, “the question in each case is whether the defendant’s will was overborne at the time he [or she] confessed.” Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); see Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963). ‘Whether a confession is a product of coercion may only be determined after a careful evaluation of the totality of all the surrounding circumstances.... ” United States v. Anderson, 929 F.2d 96, 99 (2d Cir.1991); see Miller v. Fenton, 796 F.2d 598, 604 (3d Cir.) (“To determine the voluntariness of a confession, the court must consider the effect that the totality of the circumstances had upon the will of the defendant.”), cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986). The factors to be considered include: the youth of the accused; his [or her] lack of education or his [or her] low intelligence; the lack of any advice to the accused of his [or her] constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep. Miller, 796 F.2d at 604 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973)); see Anderson, 929 F.2d at 99 (listing among factors to be considered: “the accused’s characteristics, the conditions of interrogation, and the conduct of law enforcement officials”). The Circuit has emphasized that the test for voluntariness is not a but-for test: we do not ask whether the confession would have been made in the absence of the interrogation. New criminals feel impelled" }, { "docid": "16631795", "title": "", "text": "no less than physical, coercion by law enforcement officials. See Arizona v. Fulminante, 499 U.S. 279, 285-89, 111 S.Ct. 1246,1251-54,113 L.Ed.2d 302 (1991); Miranda, 384 U.S. at 448, 86 S.Ct. at 1614. Not all psychological tactics are unconstitutional. Instead, the Sixth Circuit instructed district courts to look at the totality of the circumstances to determine if a confession was elicited by unconstitutional means. See Ledbetter v. Edwards, 35 F.3d 1062, 1067 (6th Cir.1994), cert, denied, 515 U.S. 1145, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995). Specifically, the Sixth Circuit said that the district court examining the totality of the circumstances must deter mine “whether a defendant’s will was overborne in a particular case.” Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973)). Factors to consider in assessing the totality of the circumstances include: the age, education, and intelligence of the accused; whether the accused has been informed of his constitutional rights; the length of the questioning; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food or sleep. See Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047. The Supreme Court specifically held that the lack of Miranda warnings is an important factor in determining whether coercion was present. See United States v. Watson, 423 U.S. 411, 425, 96 S.Ct. 820, 828-29, 46 L.Ed.2d 598 (1976); see also, United States v. Crowder, 62 F.3d 782, 788 (6th Cir.1995), cert, denied, — U.S. -, 116 S.Ct. 731, 133 L.Ed.2d 682 (1996). In examining the totality of the circumstances surrounding the interrogation of Defendant, the Court finds that Defendant’s confession was involuntary. Specifically, Defendant was interrogated for over an hour without being informed of his constitutional rights to counsel and his right to not incriminate himself under the Fifth Amendment. Further, the case agents interrogated Defendant for over an hour in the late evening from 11:30 p.m. to 1:00 a.m. Defendant had just returned from a business trip to Columbus when agents interrogated him. Defendant was tired and was not used to being interrogated." }, { "docid": "22254363", "title": "", "text": "all of his arguments unavailing. A. Consent to Search Car The principles governing consent searches were recently summarized by this Court in United States v. Sanchez, 635 F.2d 47 (2d Cir. 1980). A search conducted without a warrant may be justifiable if it has been voluntarily consented to by a person lawfully in control of the property searched. Such a voluntary consent is deemed to make the search “reasonable” for purposes of the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). The government has the burden of proving that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). In assessing whether the government has met its burden no one fact is determinative; the existence of consent must be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, supra, 412 U.S. at 226-27, 93 S.Ct. at 2047. The fact that a person is in police custody does not indicate that a consent to search was not given voluntarily if he was able to exercise a free choice. See United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976). Freedom of choice is deemed non-existent, however, if the officers have claimed official authority to conduct the search. See Bumper v. North Carolina, supra. And if the individual has merely acquiesced in a show of authority, he should not be found to have consented. United States v. Sanchez, supra; United States v. Ruiz-Estrella, 481 F.2d 723, 728 (2d Cir. 1973); United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973). Application of these principles to the search of Medina’s car presents no particular difficulty. Palombo, whom Fernando had met before and recognized, and Skelly approached Fernando in the vestibule of the apartment building where Hurtado lived. No guns were drawn, and Fernando was not frisked or ordered to raise his hands. While he undoubtedly was not free to leave, he was not then placed under arrest, and there is no evidence" }, { "docid": "8159075", "title": "", "text": "Mr. Newman or anyone else from the government, civil or criminal, engage in any misconduct by act or omission that misled or improperly induced Mr. Cahill to make statements that he made in violation of his Constitutional rights. Mr. Cahill was not duped at any point in time. He then denied Cahill’s motion to dismiss the indictment and motion to suppress the statements. I. On appeal, Cahill contends that the indictment against him should have been dismissed. To substantiate his position, he makes several interrelated arguments. First, he maintains that the district court erred when it failed to find that the government had promised him immunity in exchange for his testimony and then reneged on its promise — a breach of promise of immunity requiring the dismissal of the indictment. In a closely-related argument, he claims that the statements he made to the investigators were involuntary and they (and the evidence derived from them) should have been suppressed at trial. Finally, he maintains that the government unlawfully used its civil FHLBB investigation to gather information for its criminal investigation. We address each of these issues in turn. As this court has noted, it is “beyond question that, in our system of justice, ‘[a]ny agreement made by the government must be scrupulously performed and kept.’ ” United States v. Brimberry, 744 F.2d 580, 587 (7th Cir.1984), cert. denied, 481 U.S. 1039, 107 S.Ct. 1977, 95 L.Ed.2d 817 (1987) (citing United States v. Lyons, 670 F.2d 77, 80 (7th Cir.), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982)). The prosecution of a defendant based on direct or indirect testimony taken after a specific promise of immunity, therefore, warrants dismissal of an indictment. See id. In this case, the issue of whether the government breached a promise of immunity turns largely on the district court’s determinations of credibility. As we have consistently held, the district court is entitled to make credibility determinations. United States v. Carter, 910 F.2d 1524 (7th Cir.1990); AMP, Inc. v. Fleischhacker, 823 F.2d 1199 (7th Cir.1987). For purposes of review, therefore, we will show considerable" }, { "docid": "8159076", "title": "", "text": "for its criminal investigation. We address each of these issues in turn. As this court has noted, it is “beyond question that, in our system of justice, ‘[a]ny agreement made by the government must be scrupulously performed and kept.’ ” United States v. Brimberry, 744 F.2d 580, 587 (7th Cir.1984), cert. denied, 481 U.S. 1039, 107 S.Ct. 1977, 95 L.Ed.2d 817 (1987) (citing United States v. Lyons, 670 F.2d 77, 80 (7th Cir.), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982)). The prosecution of a defendant based on direct or indirect testimony taken after a specific promise of immunity, therefore, warrants dismissal of an indictment. See id. In this case, the issue of whether the government breached a promise of immunity turns largely on the district court’s determinations of credibility. As we have consistently held, the district court is entitled to make credibility determinations. United States v. Carter, 910 F.2d 1524 (7th Cir.1990); AMP, Inc. v. Fleischhacker, 823 F.2d 1199 (7th Cir.1987). For purposes of review, therefore, we will show considerable deference to the district court’s factual findings unless they are clearly erroneous. Free v. United States, 879 F.2d 1535 (7th Cir.1989); United States v. Lima, 819 F.2d 687, 688 (7th Cir.1987). In support of his position, Cahill maintains that the district court incorrectly resolved the issue of whether Newman unequivocally promised him immunity in favor of the government. We disagree. In assessing the relative credibility of the various witnesses, the court concluded that “the most credible person who testified in this hearing was John Newman.” To support this determination, the district court referred to Newman’s “meticulous” record-keeping as to the events of the case. On appeal, Cahill maintains that these same contemporaneous records substantiate his contention that Newman’s testimony was not credible. Specifically, he points to various inconsistencies between Newman’s records and the testimony elicited during the hearing. For instance, Cahill argues that it is “curious, at the very least” that the only notation of his May 14, 1985 Statement is a single entry on Newman’s calendar and that Newman’s documentation of telephone conversations with" }, { "docid": "8159079", "title": "", "text": "that a person making a proffer of evidence does not necessarily receive immunity at a later date. In United States v. Brimberry, 744 F.2d 580 (7th Cir.1984), this court held that a defendant who received a specific, written promise of immunity could not be prosecuted for offenses discovered as a direct or indirect result of the defendant’s testimony. Because there was no offer of immunity here, Cahill’s reliance on Brimberry is misplaced. Rather, this case more closely resembles that of United States v. Serlin, 538 F.2d 737, 749 (7th Cir.1976), where this court affirmed a defendant’s conviction because there was no evidence that the government had breached a promise of immunity other than the defendant’s own testimony. Because the district court’s finding that Cahill was never offered immunity is supported by the evidence, we affirm its refusal to dismiss the indictment against Cahill. At the evidentiary hearing, Cahill also sought to suppress statements he had made to the government agents, as well as any evidence the government derived from them. On appeal, Cahill again argues that four statements he made to the various government agents were not voluntarily given, but were, instead, coerced by the government’s promise of immunity. The issue of voluntariness “is a legal question requiring de novo review.” United States v. Hawkins, 823 F.2d 1020, 1022 (7th Cir.1987) (citing Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)). While this holding has been criticized, see, e.g., United States v. Wildes, 910 F.2d 1484, 1485 (7th Cir.1990); United States v. Rutledge, 900 F.2d 1127, 1128-29 (7th Cir.1990), for the purposes of this appeal, we independently examine whether the statements were voluntary. When determining the voluntariness of a particular statement, the test is whether under the totality of the circumstances the statement was freely given. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Holleman v. Duckworth, 700 F.2d 391, 396 (7th Cir.1983). Among the factors to be considered are the defendant’s prior experience with" }, { "docid": "1391893", "title": "", "text": "49 F.3d 1024, 1030 (4th Cir.) (en banc), cert. denied, — U.S. -, 116 S.Ct. 224, 133 L.Ed.2d 154 (1995). The Supreme Court has held “that coercive police activity is a necessary predicate to the finding that a [statement] is not ‘voluntary’ within the meaning of the Due Process Clause.” Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986); see also Elie, 111 F.3d at 1143. Whether Howard’s statement to Polk was the result of coercive conduct or activity can be answered only by reviewing the-totality of the circumstances under which the statement was made. See United States v. Braxton, 112 F.3d 777, 781 (4th Cir.) (en banc), cert. denied, — U.S. -, 118 S.Ct. 192, — L.Ed.2d - (1997). Howard admitted that Polk did not promise him anything and specifically denied that Polk “coerced” him in return for his cooperation. (App. at 1105.) In addition, Howard previously had numerous prior en counters with federal, state, and local law enforcement authorities. See United States v. Watson, 423 U.S. 411, 424-25 & n. 14, 96 S.Ct. 820, 828 & n. 14, 46 L.Ed.2d 598 (1976) (noting that the absence of any indication that the defendant was a “newcomer to the law” is an important factor in determining whether consent was voluntary). He was a high school graduate and had served in the military. Based on the totality of the circumstances, we conclude that Howard’s statements to Polk were not “involuntary” within the meaning of the Fifth Amendment, and therefore, the “fruit of the poisonous tree” doctrine is inapplicable to Howard’s subsequent confessions to Agent Battle and Lieutenant Hitchins. See Correll, 63 F.3d at 1291 (concluding that a third confession “could not have been tainted” by initial confessions because although the initial confessions were obtained in violation of Edwards, they were not obtained in violation of the Fifth Amendment). Accordingly, we affirm the trial court’s denial of Howard’s motion to suppress them. 2. Howard next contends that when the trial court decided to admit the confessions in the guilt phase of the trial, it violated his" }, { "docid": "8159080", "title": "", "text": "that four statements he made to the various government agents were not voluntarily given, but were, instead, coerced by the government’s promise of immunity. The issue of voluntariness “is a legal question requiring de novo review.” United States v. Hawkins, 823 F.2d 1020, 1022 (7th Cir.1987) (citing Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)). While this holding has been criticized, see, e.g., United States v. Wildes, 910 F.2d 1484, 1485 (7th Cir.1990); United States v. Rutledge, 900 F.2d 1127, 1128-29 (7th Cir.1990), for the purposes of this appeal, we independently examine whether the statements were voluntary. When determining the voluntariness of a particular statement, the test is whether under the totality of the circumstances the statement was freely given. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Holleman v. Duckworth, 700 F.2d 391, 396 (7th Cir.1983). Among the factors to be considered are the defendant’s prior experience with the criminal justice system, United States v. Oglesby, 764 F.2d 1273, 1277-78 (7th Cir.1985); United States v. Anglian, 784 F.2d 765, 768-69 (6th Cir.), cert. denied, 479 U.S. 841, 107 S.Ct. 148, 93 L.Ed.2d 89 (1986), and whether the defendant initiated contact with law enforcement officials, Stawicki v. Israel, 778 F.2d 380 (7th Cir.1985), cert. denied, 479 U.S. 842, 107 S.Ct. 150, 93 L.Ed.2d 91 (1986). Of course, if Cahill’s testimony was induced by the government’s promise of immunity, it was involuntary and must be suppressed. United States v. Gonzalez, 736 F.2d 981 (4th Cir.1984). Because there was no offer of immunity, see supra, the cases cited by Cahill are inapposite. See United States v. Brimberry, 744 F.2d 580 (7th Cir.1984) (specific promise of immunity); United States v. Society of Independent Gasoline Marketers, 624 F.2d 461 (4th Cir.1979) (promise of immunity made by Justice Department lawyer). This finding, however, does not end the inquiry into the voluntariness of Cahill’s statements since he further contends that he made the November 8, 1984 and May 14, 1985" }, { "docid": "15444766", "title": "", "text": "100 kilograms of marihuana, in violation of id. § 841(a)(1). Various defendants in No. 91-8298 appeal the admission of their confessions, the failure to sever Carrillo, and the constitutionality of sentencing. The defendants in No. 91-8218 challenge the sufficiency of the evidence and the increase in their sentence for their role as organizers. We affirm. III. No. 91-8298. A. Voluntariness of Confessions. The defendants attempted to suppress the confessions made on the night of their arrest, arguing four factors as demonstrating that the confessions were involuntary and coerced: (1) the physical conditions of their confinement; (2) the deception and psychological coercion used by the questioners; (3) the failure to advise them of their rights; and (4) the delay in presenting them to a magistrate after detention. The government has the burden of proving by a preponderance of the evidence that each defendant voluntarily waived his rights and that the statements he made were voluntary. Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986). Voluntariness depends upon the totality of the circumstances and must be evaluated on a case-by-case basis. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Under Connelly, a confession is voluntary in the absence of official overreaching, in the form either of direct coercion or subtle forms of psychological persuasion. United States v. Raymer, 876 F.2d 383, 386-87 (5th Cir.), cert. denied, 493 U.S. 870, 110 S.Ct. 198, 107 L.Ed.2d 152 (1989). We treat the district court’s findings of fact as valid unless clearly erroneous but make an independent review of the legal conclusion of voluntariness. Raymer, id. at 386. Defendants complain that they were wet, cold, and fatigued at the time of the interrogation. They argue that they were misled by the sympathetic plain-clothes officer and frightened by the uniformed officer. These circumstances do not demonstrate official coercion. The defendants were apprehended after 10:30 p.m. and arrived at the border patrol station at approximately 11:30 p.m. When a suspect is apprehended in a criminal act late at night, the government is not required to" }, { "docid": "17366941", "title": "", "text": "question whether the consent to a search was in fact voluntary or was the product of duress or coercion is a question of fact to be determined by the trier of fact from the totality of the circumstances. United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 1878, 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). United States v. Kimball, 741 F.2d 471, 474 (1st Cir.1984); accord United States v. Rojas, 783 F.2d 105, 107 (7th Cir.), cert. denied, — U.S. -, 107 S.Ct. 195, 93 L.Ed.2d 127 (1986); United States v. Borys, 766 F.2d 304, 314 (7th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986). In Schneckloth, the Supreme Court noted: In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. Those searches that are the product of police coercion can thus be filtered out without undermining the continuing validity of consent searches. 412 U.S. at 229, 93 S.Ct. at 2048 (emphasis supplied). Here, of course, the issue is whether subtle police actions, as well as questions, coerced Mr. Talkington into giving his consent. Again, we find the record inadequate to address this issue in a reasoned and meaningful manner. While the district court made very explicit findings as to whether or not Mr. Talkington understood the right that he was surrendering, it made no findings as to whether the consent was voluntary. We are mindful that, at the beginning of the suppression hearing, the district court reminded counsel that “we know that consents are voluntary,” tr. of Dec. 23, 1986 at 250, and it asked them to speak to this issue. However, at the conclusion of the hearing, when the court made its findings of fact, it ignored altogether the issue of voluntariness. Although a district court is not required to make specific factual findings in a suppression hearing, see United" } ]

[ { "docid": "4603994", "title": "", "text": "DECISION AND ORDER LEIF M. CLARK, Bankruptcy Judge. This court previously heard the objections of First City Bank-Central Park, N.A., First City Bank-Forum, N.A., San Antonio Savings Association and Texas Commerce Bank-San Antonio (“creditors”) to the exemptions claimed by Harvey Komet and Eleanor B. Komet (“debtor”) in a pension plan and a profit sharing plan, pursuant to Bankruptcy Code Section 522(b)(2)(A) and the recently enacted Texas exemption statute for retirement plans, Section 42.0021 of the Texas Property Code. Tex.Prop.Code, § 42.0021 (West pamphl. ed. 1988). In light of the U.S. Supreme Court’s decision in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (hereinafter Mack-ey), this court held that the Texas exemption statute was unavailable as it was preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”). In re Komet, 93 B.R. 498 (Bankr.W.D.Tex.1988); see 29 U.S.C. § 1144(a). The debtors moved to reconsider, to further argue the preemption issue. This court granted the debtors’ motion, heard extensive oral argument, and considered the briefs submitted not only by the parties to this case but also from the amicus curae, the Employee Benefit Committee, Section of Taxation for the State Bar of Texas. After careful reconsideration of this court’s previous ruling, and with the benefit of decisions since rendered by other bankruptcy courts in Texas on the same or similar issue, I reaffirm my decision that the Texas exemption statute for retirement plans is indeed at least partially preempted by ERISA, and certainly preempted in this case. See In re Dyke, 99 B.R. 343,19 BCD 105 (Bankr.S.D.Tex.1989); In re Volpe, 100 B.R. 840 (Bankr.W.D.Tex.1989); In re Lax-son, 102 B.R. 85 (Bankr.N.D.Tex.1989). However, this court vacates its order sustaining creditors’ objections to the claimed exemptions. The court will allow the debtors to retain their plans pursuant to Code Section 522(b)(2)(A), finding these plans are exempt by virtue of the anti-alienation provisions of ERISA. ERISA § 206(d)(1), codified at 29 U.S.C. § 1056(d); see also 26 U.S.C. § 401(a)(13). LEGAL ANALYSIS I. Texas ’ Exemption for ERISA tax-qualified retirement plans is pre-empted" } ]

[ { "docid": "18895687", "title": "", "text": "and thus the Debtor may not claim her interest in the plan as exempt. The great majority of courts that have decided the preemption issue support the Trustee’s position. See In re McLeod, 102 B.R. 60 (Bkrtcy.S.D.Miss.1989); In re Brown, 95 B.R. 216 (N.D.Okla.1989); In re Sellers, 107 B.R. 152 (Bkrtcy.E.D.Tenn.1989); In re Hirsch, 98 B.R. 1 (Bkrtcy.D. Ariz.1988), aff’d, In re Siegel, 105 B.R. 556 (D.Ariz.1989); In re Dyke, 99 B.R. 343 (Bkrtcy.S.D.Tex.1989); In re Sheppard, 106 B.R. 724 (Bkrtcy.M.D.Fla.1989); In re Komet, 104 B.R. 799 (Bkrtcy.W.D.Tex.1989). Section 514(a) of ERISA, (29 U.S.C. Section 1144), provides: Except as [otherwise] provided ... the provisions of this subchapter ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.... This provision was interpreted by the Supreme Court in Mackey v. Lanier Collections Agency & Service, 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). The Supreme Court reaffirmed its earlier position that a state law which makes “reference to” ERISA plans is a law which “relates to” those plans within the meaning of Section 514(a) and are thus preempted. More emphatically, the Court stated: [W]e also conclude that any state law which singles out ERISA plans, by express reference, for special treatment is preempted. (Emphasis in original.) 108 S.Ct. at 2189, n. 12. Because Section 12-1006(a) specifically refers to employee benefit plans that are qualified under ERISA it is preempted. The Illinois statute is not one of general application which only indirectly affects qualified benefit plans and thus withstands preemption. See In re Komet, supra; In re Balay, 113 B.R. 429 (Bkrtcy.N.D.Ill.1990). The amendment to the Illinois Exemption statute is, however, two-pronged. The first prong, discussed above — making the pension plan exempt — is clearly preempted. It is the second prong — excluding such plans from the bankruptcy estate by providing that all ERISA-quali-fied plans are conclusively presumed to be spendthrift trusts — which presents a more difficult question. Under the United States Constitution, Congress’ power to establish uniform laws on the subject of bankruptcy is paramount. U.S. Const.," }, { "docid": "4745821", "title": "", "text": "debtors accordingly have no statutory basis for their claimed exemptions. A majority of courts considering this issue have indeed held that any state statute exempting ERISA-qualified retirement plans is preempted by ERISA. See, e.g., In re Alagna, 107 B.R. 301 (Bankr.D.Colo.1989); In re Flindall, 105 B.R. 32 (Bankr.D.Ariz.1989); In re Gaines, 106 B.R. 1008 (Bankr.W.D.Mo.1989); In re Komet, 104 B.R. 799 (Bankr.W.D.Tex.1989); In re Wimmer, 121 B.R. at 543. The majority view is based on the language of ERISA itself and on the Supreme Court’s decision in Mackey v. Lanier Collections Agency and Service, 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). ERISA provides, in relevant part, that “[ejxeept as provided in subsection (b) of this section, the provisions of this subchap-ter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan_” 29 U.S.C. § 1144(a). In Mackey, the Supreme Court addressed two questions: (1) whether a Georgia statute prohibiting garnishment of an interest in an ERISA plan was preempted by ERISA, and (2) whether Georgia’s general garnishment statute was preempted by ERISA. In holding that the antigar-nishment provision was preempted and that the general garnishment statute was not, the Court reiterated its earlier ruling that a law “relates to” an employee benefit plan “if it has a connection with or reference to such a plan.” Mackey, 108 S.Ct. at 2185 (emphasis in original) (citations omitted). The Court further noted that “[o]n several occasions ... we have reaffirmed this rule, concluding that state laws which make ‘reference to’ ERISA plans are laws that ‘relate to’ those plans....” Id. (citations omitted). The majority view relies, in large part, on the broad language of Mackey cited above. There is an emerging minority view, however, construing the Mackey decision in a much narrower manner, and holding that state statutes exempting ERISA-qualified retirement plans are not necessarily preempted by ERISA. See, e.g., In re Dyke, 119 B.R. 536 (S.D.Tex.1990) (holding that Texas statute exempting employee benefit plan was not preempted by ERISA); In re Vickers, 116" }, { "docid": "18880756", "title": "", "text": "any meaning. This Court, however, disagrees. The former argument, as stated above, has been made moot by Graham, supra, and Goff, supra. It should fare no better in Arkansas, Texas, etc. The latter argument, however, is one uniquely tailored to Missouri’s state bankruptcy exemption statute. In the first case, ERISA has been held not to be a law that exempts property under the “federal” clause of § 522(b)(2)(A). However, in the second case, there can be little question that ERISA is a law which makes property “exempt from attachment and execution.” Accordingly, it would be made exempt by the “state” clause of § 522(b)(2)(A). This Court holds that the debtors’ interest in their ERISA pension plans are exempt under Missouri’s state exemption statute (§ 513.427) if the statute has not been preempted by ERISA. A discussion of whether such preemption has occurred follows. C. § 513427 preempted by ERISA The Bankruptcy Court below held that Mo.Rev.Stat. § 513.427 as used by debtors to exempt ERISA pension plan funds in bankruptcy is preempted by ERISA “and is invalid to the extent that it is dependent upon and connected with ERISA.” Its ruling was based on the preemption provision of ERISA which is. found at ERISA § 514(a), 29 U.S.C. § 1144(a) and provides in pertinent part that: the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. The preemption provision and its effect on state law was recently taken up by the Supreme Court in Mackey v. Lanier, 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). In Mackey, the Supreme Court held that a Georgia statute protecting an ERISA welfare plan from garnishment was preempted and therefore invalid. This conclusion was reached even though the Georgia law arguably would have furthered the intent of Congress when it passed ERISA. “Legislative ‘good intentions’ do not save a state law within the broad pre-emptive" }, { "docid": "10500404", "title": "", "text": "222.21(2)(a) are unconstitutional. Additionally, the trustee argues that ERISA pre-empts Fla.Stat. § 222.21(2)(a) and relies on the United States Supreme Court opinion Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). The Mackey case and the progeny of cases that followed have held that ERISA will pre-empt “any and all State laws insofar as they ■ may now or hereafter relate to any employee benefit plan which qualifies under the statute.” 29 U.S.C.A. § 1144(a). See In re Weeks, 106 B.R. 257 (E.D.Okla.1989); In re Gaines, 106 B.R. 1008 (W.D.Mo.1989); In re Flindall, 105 B.R. 32 (Ariz.1989); In re McLeod, III, 102 B.R. 60 (Bankr.S.D.Miss.1989); In re Komet, 104 B.R. 799 (W.D.Tex.1989); In re Dyke, 99 B.R. 343 (Bankr.S.D.Tex.1989); In re Hirsch, 98 B.R. 1 (Bankr.D.Ariz.1988); In re Brown, 95 B.R. 216 (Bankr.N.D.Okla.1989). The trustee has not questioned the qualified status of the employer’s plan of which the debtor is a participant. Therefore, the Court accepts for purposes of this opinion that the plan meets the requirements to classify as an ERISA-qualified plan under Florida state law and is exempt under § 522(b)(2)(A) since Florida state law provides for that exemption under Fla.Stat. § 222.21(2)(a). See In re McDonald, 100 B.R. 598 (Bankr.S.D.Fla.1989); In re Gherman, 101 B.R. 369 (Bankr.S.D.Fla.1989). Furthermore, although several cases have followed the Mackey decision this Court finds that Fla.Stat. § 222.21 is not pre-empted by ERISA and follows its reasoning in In re Martinez, 107 B.R. 378 (Bankr.S.D.Fla.1989). See also In re Bryan, 106 B.R. 749 (Bankr.S.D.Fla.1989); In re Volpe, 100 B.R. 840 (Bankr.W.D.Tex.1989). Accordingly, the benefits accruing from the annuity contract and pension plan in question may be retained by the debtor as exempt property under § 522(b)(2)(A) and Fla.Stat. § 222.14 and § 222.21(2)(a). ORDERED AND ADJUDGED that the trustee’s objection to the debtor’s claimed exemption of his annuity contract and pension plan are overruled. DONE AND ORDERED." }, { "docid": "1184689", "title": "", "text": "all claims of creditors of the beneficiary or participant. The availability of this exemption provided by the Statute to Florida residents has been considered by this Court in eases such as In re Gardner, supra, 118 B.R. 860; In re Bryant, supra, and In re Partsch, supra, 106 B.R. at 727; and In re Sheppard and Polombo, supra, 106 B.R. at 724, where this Court ordered that based on the decision of the Supreme Court in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), ERISA preempts Fla. Stat. § 222.21(2)(a) and thus, Fla.Stat. § 222.21(2)(a) is void. In Mackey, the Supreme Court held that a Georgia statute which purported to immunize funds in a 401-K plan from garnishment asserted by a creditor was invalid by virtue of the doctrine of federal preemption, based on § 514(a) of ERISA [29 U.S.C. § 1144(a)] which provides: Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan as described in section 1003(a) of this title and not exempt under section 1003(b) of this title, (emphasis added). It follows that because Fla.Stat. § 222.21(2)(a) “relates to” ERISA and is therefore preempted, the Debtors’ argument in this regard must fail. 11 U.S.C. § 522(b)(2)(A) To escape the inescapable conclusion that the funds in the ERISA plans may not be claimed and allowed as exempt pursuant to Fla.Stat. § 222.21(2)(a), the Debtors also rely on 11 U.S.C. § 522(b) which permits a debtor to choose either the federal exemptions listed in 11 U.S.C. § 522(d) or those provided by state law and also “any property that is exempt under Federal law, other than subsection (d) of this section ...” § 522(b)(2)(A). Thus, the Debtors contend that because of the anti-alienation provisions in ERISA plans required by the Internal Revenue Code, ERISA itself creates a specific nonbank-ruptcy federal exemption within the meaning of § 522(b)(2)(A). Under the" }, { "docid": "10560399", "title": "", "text": "of his ERISA qualified pension and profit sharing plans is invalid and must be disallowed. He argues that under the authority of the Supreme Court decision in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), Tenn.Code Ann. § 26-2-111(1)(D) (1980) is preempted by ERISA. In Mackey, the Supreme Court held that a Georgia statute exempting ERISA qualified welfare benefit plans from garnishment was preempted by ERISA. The court struck down the Georgia statute on the strength of ERISA § 514(a), which, as codified at 29 U.S.C.A. § 1144(a) (West 1985), provides in material part: (a) Supersedure; effective date Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title_ (emphasis added). The Court, in its discussion of ERISA § 514(a) and its effect on the Georgia statute under consideration, stated: ERISA § 514(a) pre-empts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by the statute. 29 U.S.C. § 1144(a). We believe that under our precedents, Ga.Code Ann. § 18-4-22.1 is such a state law. The Georgia statute at issue here expressly refers to — indeed, solely applies to — ERISA employee benefit plans_ “A law ‘relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983) (emphasis added). On several occasions since our decision in Shaw, we have reaffirmed this rule, concluding that state laws which make “reference to” ERISA plans are laws that “relate to” those plans within the meaning of § 514(a). See, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48, 107 S.Ct. 1549, 1553, 95 L.Ed.2d" }, { "docid": "10560398", "title": "", "text": "Tennessee statute because the debtor has the right or option to receive his benefits under the plans prior to age fifty- eight (58) upon termination of his employment. For reasons hereafter discussed, the court need not consider the merits of the trustee’s alternative argument. Tenn.Code Ann. § 26-2-111(1)(D) (1980) is preempted by ERISA. This is a core proceeding. 28 U.S.C.A. § 157(b)(2)(B) (West Supp.1989). I The parties stipulate the following material facts: 1. The debtor’s vested interest in his pension plan on the date he filed his Chapter 7 petition, February 27, 1989, was approximately $3,564.81; his vested interest in the profit sharing plan was approximately $5,269.12. 2. The debtor’s pension and profit sharing plans are ERISA qualified plans, qualifying under §§ 401(a), 403(a) and/or 403(b) of the Internal Revenue Code. (26 U.S.C.A. §§ 401(a), 403(a) and 403(b) (West Supp.1989)). 3. The debtor’s interest in the disputed pension and profit sharing plans are property of the estate, subject only to the debtor’s claimed exemption. II The trustee contends that the debtor’s claim to an exemption of his ERISA qualified pension and profit sharing plans is invalid and must be disallowed. He argues that under the authority of the Supreme Court decision in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), Tenn.Code Ann. § 26-2-111(1)(D) (1980) is preempted by ERISA. In Mackey, the Supreme Court held that a Georgia statute exempting ERISA qualified welfare benefit plans from garnishment was preempted by ERISA. The court struck down the Georgia statute on the strength of ERISA § 514(a), which, as codified at 29 U.S.C.A. § 1144(a) (West 1985), provides in material part: (a) Supersedure; effective date Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title_ (emphasis added). The Court, in its discussion of ERISA § 514(a)" }, { "docid": "4745822", "title": "", "text": "plan was preempted by ERISA, and (2) whether Georgia’s general garnishment statute was preempted by ERISA. In holding that the antigar-nishment provision was preempted and that the general garnishment statute was not, the Court reiterated its earlier ruling that a law “relates to” an employee benefit plan “if it has a connection with or reference to such a plan.” Mackey, 108 S.Ct. at 2185 (emphasis in original) (citations omitted). The Court further noted that “[o]n several occasions ... we have reaffirmed this rule, concluding that state laws which make ‘reference to’ ERISA plans are laws that ‘relate to’ those plans....” Id. (citations omitted). The majority view relies, in large part, on the broad language of Mackey cited above. There is an emerging minority view, however, construing the Mackey decision in a much narrower manner, and holding that state statutes exempting ERISA-qualified retirement plans are not necessarily preempted by ERISA. See, e.g., In re Dyke, 119 B.R. 536 (S.D.Tex.1990) (holding that Texas statute exempting employee benefit plan was not preempted by ERISA); In re Vickers, 116 B.R. 149 (Bankr.W.D.Mo.1990) (disagreeing with majority view and holding that preemption of Missouri pension exemption statute would “modify and impair” Bankruptcy Code provision delegating to states the right to create their own bankruptcy exemptions); In re Martinez, 107 B.R. 378 (Bankr.S.D.Fla.1989) (holding that Florida exemption statute not preempted since it does not attempt to regulate pension plans or change underlying purpose of ERISA); In re Volpe, 100 B.R. 840 (Bankr.W.D.Tex.1989), aff'd, 120 B.R. 843 (W.D.Tex.1990) (holding that Texas exemption statute is not preempted by ERISA since it does not purport to regulate the terms and conditions of an employee benefit plan). These cases suggest, at a minimum, that the law surrounding the preemption issue is not as well-settled as the Trustee and Blunt, Ellis & Loewi contend. Furthermore, this Court has not yet made any decision regarding the question of whether the Illinois exemption statute for retirement plans is or is not preempted by ERISA. Given this fact, and in light of the divergent views regarding the preemp tion question, the Court concludes that debtors" }, { "docid": "13920221", "title": "", "text": "IRA claimed exempt by Mrs. Martin “is qualified under § 408(a) of the federal Internal Revenue Code of 1986, as amended.” The trustee contends that Tenn.Code Ann. § 26-2-104(b) (Supp.1988) is preempted by ERISA. Alternatively, the trustee asserts that an IRA established by an individual is not a “retirement plan” within the meaning of the Tennessee statute. This is a core proceeding. 28 U.S.C.A. § 157(b)(2)(B) (West Supp.1989). I Preemption by ERISA The trustee argues that under the authority of the recent United States Supreme Court decision in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), ERISA preempts Tenn.Code Ann. § 26-2-104(b) (1980). Therefore, the trustee argues that the debtor’s claim of an exemption under this statute is invalid and must be disallowed. In Mackey, the Supreme Court held that a Georgia statute exempting an employee welfare benefit plan from garnishment was preempted by ERISA. The Court struck down the Georgia statute on the strength of ERISA § 514(a), which, as codified at 29 U.S.C.A. § 1144(a) (West 1985), provides in material part: (a) Supersedure; effective date Except as provided in subsection (b) of this section, the provisions of this sub-chapter [ERISA title I] and subchapter III of this chapter [ERISA title IV] shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this ti-tle_[ ] 1 In its discussion of the preemptive effect of ERISA § 514(a), the Supreme Court ■ stated: Where Congress intended in ERISA to preclude a particular method of state-law enforcement of judgments, or extend anti-alienation protection to a particular type of ERISA plan, it did so expressly in the statute. Specifically, ERISA § 206(d)(1) bars (with certain enumerated exceptions) the alienation or assignment of benefits provided for by ERISA pension benefit plans. 29 U.S.C. See. 1056(d)(l).i l Congress did not enact any similar provision applicable to ERISA welfare benefit plans.... Mackey v. Lanier Collections Agency & Service, Inc., 108 S.Ct." }, { "docid": "4745825", "title": "", "text": "in this case demonstrates a lack of diligence in the performance of his duties that is, at best, inexcusable. C. Objection to Exemption of IRAs Blunt, Ellis & Loewi, as previously noted, did not receive notice of the amendment to debtors’ schedules filed May 18, 1990, at which time debtors added the IRAs to their claimed exemptions. The Court will therefore consider Blunt, Ellis & Loewi’s objection to exemptions only to the extent that those objections relate to the IRAs. In short, Blunt, Ellis & Loewi contends that because paragraph 12-1006(a) is preempted by ERISA, debtors have no statutory basis for claiming their IRAs as exempt. This argument is wholly without merit. Even assuming arguendo that ERISA preempts paragraph 12-1006(a), ERISA’s preemption provision does not apply to IRAs. ERISA defines “employee pension benefit plan” and “pension plan” to mean “any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization_” 29 U.S.C. § 1002(2)(A). In addition, the regulations covering ERISA provide, in part, as follows: (d) Individual Retirement Accounts. For purposes of Title I of the Act and this chapter, the terms “employee pension benefit plan” and “pension plan” shall not include an individual retirement account described in section 408(a) of the [Internal Revenue] Code, an individual retirement annuity described in section 408(b) of the Internal Revenue Code of 1954 ... and an individual retirement bond described in section 409 of the Code.... 29 C.F.R. § 2510.3-2(d)(l) (1990). Clearly, “[s]ince an IRA is self-settled and not maintained by an employer or an organization, IRAs are simply not the type of accounts that fall under the ERISA legislation.” In re Laxson, 102 B.R. 85, 89 (Bankr.N.D.Tex.1989). Therefore, ERISA does not preempt paragraph 12-1006(a) with respect to debtors' IRAs. See also In re Chadwick, 113 B.R. 540 (Bankr.W.D.Mo.1990) (trustee’s objection to debtor’s IRA exemption based on federal preemption denied); In re Martin, 102 B.R. 639 (Bankr.N.D.1989) (IRAs outside preemptive scope of ERISA). Accordingly, for the reasons stated, the objections to exemptions filed by the Trustee and Blunt, Ellis & Loewi are" }, { "docid": "18895686", "title": "", "text": "of debts if the plan (i) is intended in good faith to qualify as a retirement plan under applicable provisions of the Internal Revenue Code of 1986, as now or hereafter amended, or (ii) is a public employee pension plan created under the Illinois Pension Code, as now or hereafter amended. Subsection (c) provides: A retirement plan that is (i) intended in good faith to qualify as a retirement plan under the applicable provisions of the Internal Revenue Code of 1986, as now or hereafter amended, or (ii) a public employee pension plan created under the Illinois Pension Code, as now or hereafter amended, is conclusively presumed to be a spendthrift trust under the law of Illinois. It is the validity and effect of those state provisions which are at issue here. It is not disputed that the pension plan in the case at bar does not qualify as a true spendthrift trust. In support of his objection to the Debtor’s claim of exemption, the Trustee first contends that Section 12-1006(a) is preempted by ERISA, and thus the Debtor may not claim her interest in the plan as exempt. The great majority of courts that have decided the preemption issue support the Trustee’s position. See In re McLeod, 102 B.R. 60 (Bkrtcy.S.D.Miss.1989); In re Brown, 95 B.R. 216 (N.D.Okla.1989); In re Sellers, 107 B.R. 152 (Bkrtcy.E.D.Tenn.1989); In re Hirsch, 98 B.R. 1 (Bkrtcy.D. Ariz.1988), aff’d, In re Siegel, 105 B.R. 556 (D.Ariz.1989); In re Dyke, 99 B.R. 343 (Bkrtcy.S.D.Tex.1989); In re Sheppard, 106 B.R. 724 (Bkrtcy.M.D.Fla.1989); In re Komet, 104 B.R. 799 (Bkrtcy.W.D.Tex.1989). Section 514(a) of ERISA, (29 U.S.C. Section 1144), provides: Except as [otherwise] provided ... the provisions of this subchapter ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.... This provision was interpreted by the Supreme Court in Mackey v. Lanier Collections Agency & Service, 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). The Supreme Court reaffirmed its earlier position that a state law which makes “reference to” ERISA plans is a law which" }, { "docid": "18613476", "title": "", "text": "where the debtor uses a corporation as his alter ego in order to control an ERISA fund. Graham holds that “ERISA is not a federal law which provides exemption protection for debtors in bankruptcy.” Id. at 1274. Likewise, In re Gaines holds that “Mo.Rev.Stat. § 513.427 cannot and does not create a Missouri ERISA exemption.” 106 B.R. at 1016. The Gaines court concludes that in light of the Supreme Court’s ruling in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), that the debtor’s pension funds were not exempt under Mo.Rev.Stat. § 513.427. Mackey involved a Georgia statute that expressly protected ERISA plans from garnishment. It may be that In re Gaines takes a somewhat pedestrian approach to Mackey, but it strikes this Court as the correct blend of Mackey and Swanson and Graham. The Supreme Court held the statute preempted because “a state may not grant rights to protect pension plans that relate to ERISA.” 108 S.Ct. at 2185. This Court held in In re Kendrick, 106 B.R. 605 (Bankr.W.D.Mo.1988) that Mo. Rev.Stat. § 513.427 is “merely reinforcement of the Missouri opt-out from the Federal Bankruptcy exemptions ...” Id. at 606. The Gaines court concludes that Mo. Rev.Stat. § 513.427 is an enabling provision that “is not effective without reference to some other statutory provision.” 106 B.R. at 1015. The Debtor argues that under federal nonbankruptcy law, specifically under ERISA, that the Profit Sharing Plan is exempt from attachment and execution. This Court agrees with Gaines that “Mo. Rev.Stat. § 513.427 is invalid to the extent that it relates to or is connected with the provisions of ERISA.” Id. The Debtor raises one final related argument for exemption of his interest in the Profit Sharing Plan under Mo.Rev.Stat. In In re Gaines, the court concludes that “the provisions of Mo.Rev.Stat. § 513.427 require an additional statutory provision granting property exempt status from attachment and execution before the court may allow an exemption to a Missouri debt- or ...” 106 B.R. at 1022. The Debtor contends that the statutory language of" }, { "docid": "4745820", "title": "", "text": "face of Rule 4003(b). Matter of Dembs, 757 F.2d 777, 780 (6th Cir.1985) (citations omitted). “[Requiring a debtor to show a good-faith statutory basis for the claimed exemption avoids the difficulties inherent in ‘exemption by declaration’ and best effectuates the policies underlying rule 4003(b).” In re Peterson, 920 F.2d 1389, 1393. Clearly, to allow a full-scale analysis of the merits of a claimed exemption where no timely objections have been filed would render Rule 4003(b) meaningless. While the Court agrees that the strict time limitations imposed by Rule 4003(b) should not be applied to provide debtors with an undeserved windfall, “[t]he dangers of ‘exemption by declaration’ ... are not significant enough to warrant permitting a trustee another bite at the debt- or’s apple where the debtor has claimed certain property exempt in good faith.” Id. Debtors base their exemptions in the pension and profit sharing plans and IRAs on Ill.Rev.Stat. ch. 110, H 12-1006(a), cited above. The Trustee and Blunt, Ellis & Loewi each contend that paragraph 12- 1006(a) is preempted by ERISA, and that debtors accordingly have no statutory basis for their claimed exemptions. A majority of courts considering this issue have indeed held that any state statute exempting ERISA-qualified retirement plans is preempted by ERISA. See, e.g., In re Alagna, 107 B.R. 301 (Bankr.D.Colo.1989); In re Flindall, 105 B.R. 32 (Bankr.D.Ariz.1989); In re Gaines, 106 B.R. 1008 (Bankr.W.D.Mo.1989); In re Komet, 104 B.R. 799 (Bankr.W.D.Tex.1989); In re Wimmer, 121 B.R. at 543. The majority view is based on the language of ERISA itself and on the Supreme Court’s decision in Mackey v. Lanier Collections Agency and Service, 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). ERISA provides, in relevant part, that “[ejxeept as provided in subsection (b) of this section, the provisions of this subchap-ter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan_” 29 U.S.C. § 1144(a). In Mackey, the Supreme Court addressed two questions: (1) whether a Georgia statute prohibiting garnishment of an interest in an ERISA" }, { "docid": "6570518", "title": "", "text": "(Plan) established by his employer under § 401(k) of the Internal Revenue Code (IRC) (26 U.S.C.A. § 401(k) (West Supp.1990)). 2. The Plan is an ERISA-qualified plan, qualifying under IRC § 401(a) (26 U.S.C.A. § 401(a) (West Supp.1990)). 3. The Plan contains the anti-assignment and anti-alienation provisions required by ERISA § 206(d) (29 U.S.C.A. § 1056(d) (West Supp.1990)) and IRC § 401(a)(13) (26 U.S.C.A. § 401(a)(13) (West Supp.1990)). 4. The debtor’s interest in the Plan on July 12, 1989, the date he and his wife filed their joint petition under Chapter 7, was $6,365.45. 5. On the date his bankruptcy petition was filed, the debtor was thirty-one years old, employed by J.B.F. Associates, Inc., was not receiving benefits under the Plan, and had never made or received any withdrawals or distribution from the Plan. II PREEMPTION OF TENN.CODE ANN. § 26-2-104(b) (Supp.1989) BY ERISA The Tennessee exemption statute relied upon by the debtor, Tenn.Code Ann. § 26-2-104(b) (Supp.1989), provides in material part: (b) Except as provided in subsection (c), any funds or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement plan which is qualified under §§ 401(a), 403(a), 403(b), and 408 of the federal Internal Revenue Code of 1986, as amended,[ ] are exempt from any and all claims of creditors of the participant or beneficiary, except the state of Tennessee.... This court, adhering to the United States Supreme Court’s decision in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), has previously held that Tenn. Code Ann. § 26-2-111(1)(D) (1980), which also provides for an exemption in ERISA-qualified pension and profit sharing plans, “relates to” ERISA and is therefore preempted by ERISA. In re Sellers, 107 B.R. 152 (Bankr.E.D.Tenn.1989). Tenn. Code Ann. § 26-2-104(b) (Supp.1989) “relates to” ERISA and for the reasons discussed by the court in Sellers, must also fall to ERISA’s preemption provisions. The Supreme Court in Mackey held that a Georgia statute exempting ERISA-quali-fied welfare benefit plans from garnishment was preempted by ERISA. The Court" }, { "docid": "18883068", "title": "", "text": "own exemption scheme which can be found in the Illinois Code of Civil Procedure at Chapter 110, paragraphs 12-901, 12-1001 and also at 12-1006. Third, in 1974 Congress enacted ERISA. 29 U.S.C.A. § 1001 et seq. Prior to its passage, the United States witnessed a rap id growth in private pension plans, encompassing millions of dollars and directly or indirectly affecting interstate, commerce. ERISA was passed to protect the participants and their beneficiaries in such plans. 29 U.S.C.A. § 1001(a). Of particular importance here is ERISA’s § 1144(a) which provides, in part, that: [ERISA] ... shall supercede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a). 29 U.S. C.A. § 1144(a). What makes this provision particularly important here is its potential effect upon the Illinois’ P.A. 86-393. A number of courts have examined the relationship between ERISA and state created exemption schemes in both a bankruptcy and non-bankruptcy setting and have invalidated the state exemption schemes under the preemptive language of ERISA’s § 1144(a). Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (broadly interpreting the “relate[s] to” language of ERISA’s § 1144(a), the Court invalidated a Georgia statute purporting to exempt ERISA employee welfare benefit plans from attachment and garnishment actions); In re Alagna, 107 B.R. 301 (Bankr.Colo.1989) (holding that the Colorado statute providing for the exemption of a debtor’s interest in an ERISA-qualified pension plan was pre-empted by ERISA); In re Sellers, 107 B.R. 152 (Bankr.E.D.Tenn.1989) (holding that the Tennessee statute providing for the exemption of a debtor’s interest in pension plans qualified under the Internal Revenue Code §§ 401 et. seq. was pre-empted by ERISA); In re Dyke, 99 B.R. 343 (Bankr.S.D.Tex.1989) (holding that the Texas statute providing for the exemption of a debtor’s interest in a retirement plan qualified under the Internal Revenue Code of 1986 was pre-empted by ERISA). The Illinois Act, set out at Chapter 110, paragraph 12-1006, seeks to exempt retirement plans using language strikingly similar to the language used in" }, { "docid": "1184688", "title": "", "text": "upon retirement, death or disability. Thus, this Court is satisfied that the Trustees’ Objections regarding Mr. Braswell and Mr. Atzkatz should be overruled as these plans are not property of the estate. Based on the foregoing, the alternative arguments advanced by Mr. Bras-well and Mr. Atzkatz that their interests in their respective plans are exempt are moot. However, for purposes of discussion, this Court will nevertheless address the merits of those arguments below. Fla.Stat. § 222.21(2)(a) It is urged by the Debtors that even assuming their interests in the plans are property of the estate, they are exempt pursuant to Fla.Stat. § 222.21(2)(a). This Section enacted by the Florida Legislature in 1987 provides as follows: (2)(a) Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in a retirement or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408, or s. 409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. The availability of this exemption provided by the Statute to Florida residents has been considered by this Court in eases such as In re Gardner, supra, 118 B.R. 860; In re Bryant, supra, and In re Partsch, supra, 106 B.R. at 727; and In re Sheppard and Polombo, supra, 106 B.R. at 724, where this Court ordered that based on the decision of the Supreme Court in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), ERISA preempts Fla. Stat. § 222.21(2)(a) and thus, Fla.Stat. § 222.21(2)(a) is void. In Mackey, the Supreme Court held that a Georgia statute which purported to immunize funds in a 401-K plan from garnishment asserted by a creditor was invalid by virtue of the doctrine of federal preemption, based on § 514(a) of ERISA [29 U.S.C. § 1144(a)] which provides: Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall" }, { "docid": "18883069", "title": "", "text": "§ 1144(a). Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (broadly interpreting the “relate[s] to” language of ERISA’s § 1144(a), the Court invalidated a Georgia statute purporting to exempt ERISA employee welfare benefit plans from attachment and garnishment actions); In re Alagna, 107 B.R. 301 (Bankr.Colo.1989) (holding that the Colorado statute providing for the exemption of a debtor’s interest in an ERISA-qualified pension plan was pre-empted by ERISA); In re Sellers, 107 B.R. 152 (Bankr.E.D.Tenn.1989) (holding that the Tennessee statute providing for the exemption of a debtor’s interest in pension plans qualified under the Internal Revenue Code §§ 401 et. seq. was pre-empted by ERISA); In re Dyke, 99 B.R. 343 (Bankr.S.D.Tex.1989) (holding that the Texas statute providing for the exemption of a debtor’s interest in a retirement plan qualified under the Internal Revenue Code of 1986 was pre-empted by ERISA). The Illinois Act, set out at Chapter 110, paragraph 12-1006, seeks to exempt retirement plans using language strikingly similar to the language used in both ERISA and the statutes of Colorado, Tennessee and Texas. Under the foregoing authorities, the Illinois Act may not survive the pre-emption language of ERISA’s § 1144(a). However, the Illinois Act contains a unique provision not found in the statutes of Colorado, Tennessee or Texas. The provision states, in part, that: A retirement plan that is (i) intended in good faith to qualify as a retirement plan under the applicable provisions of the Internal Revenue Code of 1986 as now or hereafter amended ... is conclusively presumed to be a spendthrift trust under the law of Illinois. Ill.Ann.Stat. ch. 110, H 12-1006(c). Fourth, the State of Illinois has the power to determine what constitutes a spendthrift trust. U.S. Const, amend. X. As discussed earlier, in order for a trust to be enforceable as a spendthrift trust under Illinois law: (1) the trust must contain an anti-alienation provision; (2) the trust must not be self-settled; and (3) the property of the trust must be out of the control of the beneficiary. In re DiPiazza, 29 B.R." }, { "docid": "10500403", "title": "", "text": "is entitled to claim as exempt the proceeds of his annuity contract. The trustee has failed to cite any case which would support denial of the debtor’s exemption of his annuity benefits. As stated in Killian v. Lawson, 387 So.2d 960 (Fla.1980), “exemption statutes ... should be liberally construed in favor of a debtor so that he and his family will not become public charges.” Id. at 962. Therefore, the Court will allow exemption of the debtor’s annuity benefits. See In re Benedict, 88 B.R. 390, 392 (Bankr.M.D.Fla.1988); In re Mart, 88 B.R. 436 (Bankr.S.D.Fla.1988). Secondly, the trustee argues that both Fla.Stat. § 222.14 and § 222.21(2)(a) are unconstitutional because they infringe upon the exclusive jurisdiction of the federal legislature and are beyond those exemptions granted under the Florida Constitution relying on In re Hudspeth, 92 B.R. 827 (Bankr.W.D.Ark.1988). See also FLA. CONST, art. VII, § 6 and FLA. CONST, art. X, § 4. However, the Court has reviewed the case cited by the trustee and is not persuaded that Fla.Stat. § 222.14 and § 222.21(2)(a) are unconstitutional. Additionally, the trustee argues that ERISA pre-empts Fla.Stat. § 222.21(2)(a) and relies on the United States Supreme Court opinion Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). The Mackey case and the progeny of cases that followed have held that ERISA will pre-empt “any and all State laws insofar as they ■ may now or hereafter relate to any employee benefit plan which qualifies under the statute.” 29 U.S.C.A. § 1144(a). See In re Weeks, 106 B.R. 257 (E.D.Okla.1989); In re Gaines, 106 B.R. 1008 (W.D.Mo.1989); In re Flindall, 105 B.R. 32 (Ariz.1989); In re McLeod, III, 102 B.R. 60 (Bankr.S.D.Miss.1989); In re Komet, 104 B.R. 799 (W.D.Tex.1989); In re Dyke, 99 B.R. 343 (Bankr.S.D.Tex.1989); In re Hirsch, 98 B.R. 1 (Bankr.D.Ariz.1988); In re Brown, 95 B.R. 216 (Bankr.N.D.Okla.1989). The trustee has not questioned the qualified status of the employer’s plan of which the debtor is a participant. Therefore, the Court accepts for purposes of this opinion that the plan meets the" }, { "docid": "18613475", "title": "", "text": "Hallmark Profit Sharing Plan does not give the Plan’s Advisory Committee discretionary power to deny payment when a participate terminates employment. The Debtor has absolute power to compel a lump sum distribution from the Plan at his own discretion. The court finds, therefore, that the Trustee in bankruptcy succeeds to this same power and may compel payment of the Debtor’s $30,-000.00 interest into the estate. D. EXEMPTIONS UNDER MO.REY. STAT. § 513.427 The Debtor also argues that even if the court should find that the Profit Sharing Plan is includable in the bankruptcy estate under § 541(a), that he is entitled to exempt the entire interest pursuant to Mo. Rev.Stat. § 513.427. The Debtor urges the court to find that the Profit Sharing Plan is exempt because it is not subject to attachment and execution under federal nonbank-ruptcy law. In effect, the Debtor asks the Court to reverse In re Graham, 726 F.2d 1268 (8th Cir.1984); and In re Gaines, 106 B.R. 1008 (Bankr.W.D.Mo.1989); or alternatively, to limit the application of these cases to circumstances where the debtor uses a corporation as his alter ego in order to control an ERISA fund. Graham holds that “ERISA is not a federal law which provides exemption protection for debtors in bankruptcy.” Id. at 1274. Likewise, In re Gaines holds that “Mo.Rev.Stat. § 513.427 cannot and does not create a Missouri ERISA exemption.” 106 B.R. at 1016. The Gaines court concludes that in light of the Supreme Court’s ruling in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), that the debtor’s pension funds were not exempt under Mo.Rev.Stat. § 513.427. Mackey involved a Georgia statute that expressly protected ERISA plans from garnishment. It may be that In re Gaines takes a somewhat pedestrian approach to Mackey, but it strikes this Court as the correct blend of Mackey and Swanson and Graham. The Supreme Court held the statute preempted because “a state may not grant rights to protect pension plans that relate to ERISA.” 108 S.Ct. at 2185. This Court held in In re" }, { "docid": "6570519", "title": "", "text": "to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement plan which is qualified under §§ 401(a), 403(a), 403(b), and 408 of the federal Internal Revenue Code of 1986, as amended,[ ] are exempt from any and all claims of creditors of the participant or beneficiary, except the state of Tennessee.... This court, adhering to the United States Supreme Court’s decision in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), has previously held that Tenn. Code Ann. § 26-2-111(1)(D) (1980), which also provides for an exemption in ERISA-qualified pension and profit sharing plans, “relates to” ERISA and is therefore preempted by ERISA. In re Sellers, 107 B.R. 152 (Bankr.E.D.Tenn.1989). Tenn. Code Ann. § 26-2-104(b) (Supp.1989) “relates to” ERISA and for the reasons discussed by the court in Sellers, must also fall to ERISA’s preemption provisions. The Supreme Court in Mackey held that a Georgia statute exempting ERISA-quali-fied welfare benefit plans from garnishment was preempted by ERISA. The Court struck down the Georgia statute on the strength of ERISA § 514(a) (29 U.S.C.A. § 1144(a) (West 1985)), which provides in material part: (a) Supersedure; effective date Except as provided in subsection (b) of this section, the provisions of this sub-chapter [ERISA title I] [ ] and subchapter III [ERISA title IV] of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan [ ] described in section 1003(a) of this title and not exempt under section 1003(b) of this title. ... The Court, in its discussion of ERISA § 514(a) and its effect on the Georgia statute under consideration, stated: ERISA § 514(a) pre-empts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by the statute.... The Georgia statute at issue here expressly refers to — indeed, solely applies to — ERISA employee benefit plans_ “A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it" } ]

[ { "docid": "4087168", "title": "", "text": "process. This circuit held, in Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1965), that a State prosecuting attorney was immune from suit under the Civil Rights Act, 42 U.S.C. § 1983 (1964). Writing for the Court en ba/nc Judge Staley said: “In deciding the question of whether a prosecuting attorney is liable for acts done in his official capacity, we must decide whether his duties are sufficiently judicial to cloak him with the same immunity afforded judges or are so closely related to those duties of law enforcement officials as to amerce him with potential civil liability for his imprudent actions. * * * Analogy could support either conclusion, but we believe that both reason and precedent require that a prosecuting attorney should be granted the same immunity as is afforded members of the judiciary. The reasons are clear: his primary responsibility is essentially judicial — the prosecution of the guilty and the protection of the innocent, Griffin v. United States, 295 F. 437, 439-440 (C.A.3, 1924); his office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest. In this respect, it is imperative that he enjoy the same freedom and independence of action as that which is accorded members of the bench.” 361 F.2d at 589-590 (footnote omitted). Bauers v. Heisel would seem to compel the result that an Assistant United States Attorney is clothed with judicial immunity, unless there is some reason to distinguish between the liability of State prosecutors under the Civil Rights Act and the liability of federal prosecutors under the federal common law created by the Bivens decision. We perceive no reason for such a distinction. Thus the district court correctly dismissed the complaint against the Assistant United States Attorney on the ground of immunity from suit. We express no opinion at this time as to whether the duties of the remaining defendants are such as to require that they too be granted either judicial or executive immunity. That decision should await a fuller development of the facts. The district court did not address itself" } ]

[ { "docid": "17691878", "title": "", "text": "denied, 382 U.S. 998, 86 S.Ct. 589, 15 L.Ed.2d 486, reh. denied, 383 U.S. 954, 86 S.Ct. 1207, 16 L.Ed.2d 216 (1965). III. The defendants further contend that the doctrine of judicial immunity is available to them as a defense in this action. This doctrine was recently discussed at great length in Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971). In that ease, an inmate brought an action under 42 U.S.C. § 1983 against three employees of the Federal Bureau of Investigation and an Assistant United States Attorney for damages suffered by a violation of plaintiff’s Fourth and Fifth Amendment rights. Writing for the majority, Judge Gibbons initially noted that the defendants were federal officers acting “under color of” federal law and thus not subject to an action for damages under 42 U.S.C. § 1983. 445 F.2d at 1164. The Court of Appeals for the Third Circuit then held that the doctrine of judicial immunity from suit under 42 U.S.C. § 1983 extends to both state and federal prosecutors. The Court of Appeals primarily based its holding on the earlier case of Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1965). Holding that judicial immunity extended to state prosecutors, Judge Staley, for the majority, said: “The reasons are clear: his primary responsibility is essentially judicial — the prosecution of the guilty and the protection of the innocent. [H]is office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest. In this respect, it is imperative that he enjoy the same freedom and independence of action as that which is accorded members of the bench.” 361 F.2d at 589-590. The Court of Appeals affirmed the District Court’s dismissal of the action as against the Assistant United States Attorney while expressing no opinion as to the availability of immunity to the remaining defendants (agents of the Federal Bureau of Investigation). 445 F.2d at 1166. The issue here is whether the defense of judicial immunity is available to defendants in an action for damages pursuant to 42 U.S.C. § 1983 allegedly arising from the" }, { "docid": "892547", "title": "", "text": "it was vested in him; his acts were therefore privileged and immune from civil suit at the instance of a party aggrieved by those acts. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Rudnicki v. McCormack, 210 F.Supp. 905 (D. Mass.1962), appeal dismissed, 372 U.S. 226, 83 S.Ct. 679, 9 L.Ed.2d 714 (1963); see Gregoire v. Biddle, 177 F.2d 579, at 581 (2nd Cir. 1949); Burton v. Pear- tree, 326 F.Supp. 755, at 761 (E.D.Pa. 1971). Judicial immunity for acts within the Judge’s official duties clearly protects the Judges named as defendants herein and bars the plaintiff from suing them on the matters complained of herein. Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L.Ed.2d 288 (1967). Similarly, as this Court stated in Williams v. Halperin, 360 F.Supp. 554, at 557 (S.D. N.Y.1973) “The law in this Circuit has long shielded federal prosecutors with an absolute immunity from any damage actions based on their conduct while acting in their official capacities.” See also Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff’d. per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927) which dismissed a damage suit for alleged fraud in a prosecution against a Special Assistant United States Attorney General. The remaining- defendants all were officials of the Air Force when they committed the alleged conspiratorial acts. Their acts were such as were within the ambit of their positions and in discharge of their duties. Cf. Keppleman v. Upston, 84 F.Supp. 478 (N.D. Cal.1949) (suit by Air Force Sergeant for false imprisonment against Air Force officers). Additionally, 42 U.S.C. § 1983 gives no support to the claim herein since it provides a claim for relief only against defendants who act under color of state law or custom. “The Civil Rights Act does not, however, apply to federal officers”. Bivens v. Six Unknown Named Agents of the FBN, 456 F.2d 1339, at 1346 (2d Cir. 1972). “Sections 1985 and 1986 of Title 42, while providing for private suits for damages, do not allow relief against the actions of federal" }, { "docid": "18857777", "title": "", "text": "declaratory relief. A. Civil Rights Act Claims Against the Individual Defendants Magistrate Schreiber recommended that the Civil Rights Act claims be dismissed because to state a cause of action under 42 U.S.C. §§ 1983, 1985(3) and 1986, a defendant must be acting under color of state law or acting jointly with state officials (Magistrate’s Report at 8). The Magistrate found that since the individual defendants in this case were federal officials acting under col- or of federal, not state law, Id. at 8, and because plaintiff did not sufficiently allege joint action with state officials Id. at 7, plaintiff failed to state a claim upon which relief can be granted under §§ 1983, 1985(3) and 1986. 1. § 1988 Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Section 1983, by its own terms, applies to persons acting under color of state law. It does not generally extend to persons acting under color of federal law. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1346 (2d Cir. 1972). See also: Soldevila v. Secretary of Agriculture of the United States, 512 F.2d 427, 429 (1st Cir. 1975); Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972); Norton v. McShane, 332 F.2d 855, 862 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965); Smith v. United States Civil Service Commission, 520 F.2d 731, 733 (7th Cir. 1975); Williams v. Rogers, 449 F.2d 513, 517 (8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 976, 30 L.Ed.2d 799 (1972). However, actions of federal officers may be the subject of" }, { "docid": "5244321", "title": "", "text": "cause, but whether the officer 'believed in good faith that the arrest was made with probable cause and whether that belief was reasonable. It is now clear that an identical standard is to be applied in civil rights claims against federal officials based on the Fourth Amendment. When the Supreme Court held that the Fourth Amendment created a cause of action against federal officials in Bivens, supra, it did not reach the question of whether the officers had the benefit of any immunity or defenses. Upon remand to the Court of Appeals for the Second Circuit these questions were answered in a well reasoned opinion by Judge Medina, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 2 Cir., 456 F.2d 1339 (1972). The court there held that the law enforcement officials were not entitled to immunity where it was alleged that constitutional rights were violated and that, in an action for damages based on the Fourth Amendment, officers were entitled to the same defense of good faith and probable cause found in Pierson, supra, to be available in cases arising under § 1983. Judge Medina reasoned that since the Fourth Amendment cause of action was analogous to one based on § 1983 it was important that the legal standards applied be consistent. The following statement of the standard by Judge Medina was recently adopted by our court in Tritsis v. Backer, 7 Cir., 501 F.2d 1021 (1974) : [T]o prevail the police officer need not allege and prove probable cause in the constitutional sense. The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 2 Cir., 456 F.2d 1339, 1348 (1972). As Circuit Judge Lumbard emphasized in his concurrence in Bivens, the reasonable man standard to be applied in tort actions against governmental agents is less stringent than" }, { "docid": "9657815", "title": "", "text": "that the matter in controversy is of a sum or value in excess of ten thousand dollars. Appellant bases his cause of action on violations of his civil rights under 42 U.S.C. §§ 1981-1983, and on violation of his “rights to a fair trial” under the Constitution. This Circuit has held that a cause of action for damages does not accrue under 42 U.S.C. §§ 1981 et seq. for an alleged violation of the Act by federal officers acting under color of federal law. Bethea v. Reid, 445 F.2d 1163 (1971). Thus, if a cause of action exists, it must be based on a violation of a constitutionally protected right of plaintiff. Subsequent to the dismissal by the District Court, the Supreme Court of the United States in an opinion by Mr. Justice Brennan held that a violation of the Fourth Amendment right to be secure against unreasonable searches and seizures gave rise to an action for damages in the federal district court against federal agents, absent a right to immunity. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (June 21, 1971). Thereafter, relying on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, this Court in Bethea v. Reid, supra, held that a complaint which alleged violations of Fourth and Fifth Amendments rights stated a claim upon which relief could be granted. In this action, we do not have a charge of a Fourth Amendment violation; however, there are sufficient allegations of Fifth Amendment violations to support an action for damages. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, recognizes a cause of action for damages for violation of constitutionally protected interests, and is not limited to Fourth Amendment violations. Thus, unless there is immunity from suit, the complaint states a claim upon which relief can be granted. However, in Bethea v. Reid, supra, this Court held that an Assistant United States Attorney is clothed with judicial immunity when acting in his official capacity. The complaint and defendant Koelzer’s affidavit" }, { "docid": "22748190", "title": "", "text": "to the superintendent of a state hospital. In Procunier v. Navarette, 434 U. S. 555 (1978), we held that prison administrators would be adequately protected by the qualified immunity outlined in Scheuer and Wood. We emphasized, however, that, at least in the absence of some showing of malice, an official would not be held liable in damages under § 1983 unless the constitutional right he was alleged to have violated was “clearly established” at the time of the violation. None of these decisions with respect to state officials furnishes any support for the submission of the United States that federal officials are absolutely immune from liability for their constitutional transgressions. On the contrary, with impressive unanimity, the Federal Courts of Appeals have concluded that federal officials should receive no greater degree of protection from constitutional claims than their counterparts in state government. Subsequent to Scheuer, the Court of Appeals for the Fourth Circuit concluded that “[although Scheuer involved a suit against state executive officers, the court’s discussion of the qualified nature of executive immunity would appear to be equally applicable to federal executive officers.” States Marine Lines v. Shultz, 498 F. 2d 1146, 1159 (1974). In the view of the Court of Appeals for the Second Circuit, “it would be ‘incongruous and confusing, to say the least’ to develop different standards of immunity for state officials sued under § 1983 and federal officers sued on similar grounds under causes of action founded directly on the Constitution.” Economou v. U. S. Dept. of Agriculture, 535 F. 2d, at 695 n. 7, quoting Bivens v. Six Unknown Fed. Narcotics Agents, 456 F. 2d 1339, 1346-1347 (CA2 1972) (on remand). The Court of Appeals for the Ninth Circuit has reasoned: “[Defendants] offer no significant reason for distinguishing, as far as the immunity doctrine is concerned, between litigation under § 1983 against state officers and actions against federal officers alleging violation of constitutional rights under the general federal question statute. In contrast, the practical advantage of having just one fed eral immunity doctrine for suits arising under federal law is self-evident. Further, the rights" }, { "docid": "22075913", "title": "", "text": "of the doctrine of “judicial immunity” to prosecuting attorneys. HASTIE, Circuit Judge (concurring in the result). I agree that Picking v. Pennsylvania Railroad, 3d Cir., 1945, 151 F.2d 240, should be overruled. But I do not share the view of the majority that the doctrine of “judicial immunity” protects whatever acts of a public prosecutor are “done in his official capacity” or are not “clearly outside his jurisdiction”. However, I am satisfied that the present complaint, charging a prosecutor with erroneously prosecuting the plaintiff as an adult when he should have known that the plaintiff was under the age of 18, does not state such a deprivation of a federally secured right as is comprehended by the original Civil Rights Act, 42 U.S.Code § 1983, formerly R.S. § 1979, upon which this claim is predicated. Thus, I agree that the complaint here fails to state a cause of action, but for a reason different from that upon which the majority place principal reliance. BIGGS, Circuit Judge (dissenting). There are two issues presented by this appeal: first, is the défendant, County Prosecutor Heisel, immune from suit brought under the Third Civil Rights Act, 42 U.S.C. § 1983, R.S. § 1979, and, second does the complaint state a cause of action against him? To deal with the second question first, I had thought that this was answered adequately and in the plaintiff-appellant’s favor by our decisions in Basista v. Weir, 340 F.2d 74 (1965), and Anderson v. Haas, 341 F.2d 497 (1965). In the Anderson case Chief Judge Staley concluded, id. at 502, that the contention of the police officers that they acted in good faith and without malice could be no defense in a civil action brought under Section 1983. But surely and very finally the scope of the Civil Rights Acts has been defined in United States v. Price, 86 S.Ct. 1152 (1966), and the opinion of the Supreme Court in Price certainly is not in accord with the opinion of this court and requires reversal of this tribunal’s decision unless Prosecutor Heisel be found to be immune from a" }, { "docid": "10813593", "title": "", "text": "the reasons stated hereinafter, the Court finds certain claims asserted in the complaint to be insufficient even when measured against the liberal standard of Haines and, accordingly, the complaint is dismissed to the degree indicated hereafter. I. Motion of the BNDD agents. Plaintiff relies upon certain civil rights statutes in asserting a claim against the BNDD agents. However, the reliance is misplaced. Section 242 of Title 18 does not create a private right of action; this is a criminal provision for deprivation of civil rights under color of law. Brown v. Duggan, 329 F. Supp. 207 (W.D.Pa.1971); Sinchak v. Parente, 262 F.Supp. 79 (W.D.Pa.1966). Sections 1985 and 1986 of Title 42, while providing for private suits for damages, do not allow relief against the actions of federal officers acting under color of federal law. See Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950); accord, Bethea v. Reid, 445 F.2d 1163, 1164 (3rd Cir.), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d749 (1971). The principle of Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as further defined by the Second Circuit at 456 F. 2d 1339 (1972) has been urged by plaintiff to sustain his claim against the BNDD agents. Bivens created a federal claim under the Fourth Amendment for a violation of constitutional rights through an illegal search and seizure. Even if the complaint could be deemed to be broad enough to encompass a Bivens type claim, the plaintiff herein previously and unsuccessfully litigated the precise issue of the alleged unconstitutional search and seizure. At the criminal trial, on appeal from the conviction, and in several motions for post-conviction relief, 28 U.S.C. § 2255, adverse rulings were entered against this plaintiff on the search and seizure contention. See United States v. Williams, 69 Cr. 266 (Murphy, J.), aff’d without opinion, (2d Cir. Dec. 10, 1970), cert. denied, 402 U.S. 987, 91 S.Ct. 1677, 29 L.Ed.2d 152 (1971); Williams v. United States, 334 F.Supp. 669 (S.D.N.Y.1971) (Weinfeld, J.)," }, { "docid": "23035957", "title": "", "text": "1317, 1322-23 (5th Cir. 1980). See generally S. Nahmod, supra, §§ 8.03, 8.12. Judge Charles Clark, writing for our court in Cruz v. Beto, supra, explained the rationale behind this allocation of the burdens of persuasion: The underlying policy which pervades every qualified immunity analysis is one of protecting the public by permitting its decision-makers to function without fear that an exercise of discretion might in retrospect be found to be error. [Citing Butz v. Economou, supra, and Pierson v. Ray, supra.] If an official can show that [the] questionable actions were taken in the regular course of discharging his official duties, therefore, this policy affords him immunity from liability. To deny him qualified immunity protection unless he goes further and demonstrates that his actions were above the benchmark of legal good faith, would make the concept of qualified immunity a meaningless embellishment. 603 F.2d at 1183. 2. Balias’ qualified immunity defense to Bivens liability. — The Second Circuit held in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972) (on remand from 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)), that a police officer could assert as a defense to a Bivens-type constitutional tort claim his entitlement to a qualified immunity based on his reasonable, good-faith belief that his conduct was lawful. The rationale behind this qualified immunity is essentially the same as that behind the qualified immunity from section 1983 liability that is available to state officials. Some previous opinions of this court have treated the qualified immunity available in Bivens-type cases as being functionally equivalent to that available in section 1983 cases. See, e. g., Reimer v. Short, supra, 578 F.2d at 626-27. The Supreme Court adopted the same approach by holding in Butz v. Economou, 438 U.S. 478, 496-504, 98 S.Ct. 2894, 2905, 57 L.Ed.2d 895 (1978), that federal officials enjoy the same zone of protection when they are alleged to have violated federal constitutional rules as do state officials. B. The Propriety of Summary Judgments Based on the Qualified Immunity Defense 1. General considerations." }, { "docid": "21220", "title": "", "text": "part subsidized by the state and local government “is a private individual acting in a professional capacity” and therefore not amenable to a § 1983 action. Coneededly, there are differences between a court-appointed lawyer from a pool of volunteers, Thomas, or from an agency funded by private contributions, Peake, and one serving full time in a public office paid by public revenues authorized and mandated by statute. But the fact that one comes to his court-appointed role as a result of a state-mandated and county-financed system does not, in any respect whatsoever, distinguish his professional responsibility to his client from that of any attorney appointed to serve without pay, or paid by a legal aid society financed largely by private contributions. We find it difficult to perceive “color of law” in the activities in the first category, and deny its existence in the latter. In any event, we do not deem it necessary to decide the question, see Wardrop v. Dean, 459 F.2d 1030 (3d Cir.1972), because in the view we take, even assuming the color of law requirement to have been met, we hold that a County Public Defender, created under the Pennsylvania statute, enjoys immunity from liability. The Supreme Court has held that a state judge enjoys immunity for acts done in the performance of his judicial function, Pierson v. Ray, 386 U.S. 547 (1967). In Bauers v. Heisel, 361 F.2d 581 (3d Cir.1966), and in Kauffman v. Moss, 420 F.2d 1270 (3d Cir.1970), we extended that immunity to state prosecutors ; and in Bethea v. Reid, 445 F.2d 1163 (3d Cir.1971), to an Assistant United States Attorney in an action brought for an alleged Fourth Amendment deprivation. Our decisions therefore reflect the current state of the law throughout the circuits. “Prosecutors, state and city attorneys are generally immune under the Civil Rights Act, unless their acts are clearly outside the scope of their jurisdiction.” Antineau, Federal Civil Rights Acts, § 40, and cases cited therein. We perceive no valid reason to extend this immunity to state and federal prosecutors and judges and to withhold it from state-appointed" }, { "docid": "18857778", "title": "", "text": "be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Section 1983, by its own terms, applies to persons acting under color of state law. It does not generally extend to persons acting under color of federal law. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1346 (2d Cir. 1972). See also: Soldevila v. Secretary of Agriculture of the United States, 512 F.2d 427, 429 (1st Cir. 1975); Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972); Norton v. McShane, 332 F.2d 855, 862 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965); Smith v. United States Civil Service Commission, 520 F.2d 731, 733 (7th Cir. 1975); Williams v. Rogers, 449 F.2d 513, 517 (8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 976, 30 L.Ed.2d 799 (1972). However, actions of federal officers may be the subject of a § 1983 suit if there is proof of a joint conspiracy with state officials, Kletschka v. Driver, 411 F.2d 436, 448 (2d Cir. 1969). Here it is claimed that the government was a joint participant in the conspiracy because defendants Jenkins, Kemp and defendants A through D had prior knowledge of the planned conduct of the vigilantes and the Birmingham police (Complaint ¶¶ 10, 11) but failed to report this to anyone in the Justice Department (other than FBI personnel) (Complaint ¶ 12) or to state and local officials (Complaint ¶ 19) and failed to deter the conspirators or take any other steps to prevent their actions (Complaint ¶ 13). Plaintiff also claims that there was joint government participation in that Rowe participated in the con spiracy (Complaint ¶ 23) and that the federal officers “approved the acts of Rowe and likewise participated in and furthered the aforesaid conspiracy” (Complaint ¶ 24). Plaintiff contends that this is sufficient to sustain, on a motion to dismiss, a claim that the government was a joint conspirator" }, { "docid": "4095874", "title": "", "text": "and personal responsibility for the purportedly unlawful conduct of his subordinates. In Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973), we stated with regard to state officials that “the general doctrine of respondeat superior does not suffice . . . ” We see no reason why the pleading requirements should be any different in actions against federal officials. Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1346-7 (2d Cir. 1972). Insofar as appellants’ complaint is silent in this critical regard, it is fatally defective. The allegations regarding Levi and Fiske do not suffice to state direct and personal responsibility for the purported misconduct of their subordinates. See Morpurgo v. Board of Higher Education, 423 F.Supp. 704, 713 (S.D.N.Y.1976). Moreover, there are immunity defenses available to the individual defendants. Certain of the defendants are federal prosecutors. The Supreme Court, in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (“Imbler”) found a state prosecuting attorney acting within his duties absolutely immune from a § 1983 suit brought by an accused. Mr. Justice Powell, speaking for the Court, examined the concept of prosecutorial liability. He discussed the common-law immunity of prosecutors and noted Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927) (per curiam). In that case, a special assistant to the United States Attorney General was accused of having obtained a grand jury indictment maliciously and without probable cause through the intentional introduction of false evidence. The complaint was dismissed by the district court and this decision was affirmed by both the Court of Appeals and the Supreme Court. Mr. Justice Powell went on to observe: A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor’s office would suffer if he were con strained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such" }, { "docid": "10813595", "title": "", "text": "aff’d, 463 F.2d 1183 (2d Cir. 1972) (per curiam); 72 Civ. 5118 (S.D.N.Y. March 7, 1973) (Gagliardi, J.). Such rulings preclude plaintiff from relitigating the asserted unconstitutional action. See Rosenberg v. Martin, 478 F.2d 520 (2d Cir. 1973). Accordingly, no construction of the averments in the complaint entitles even a pro se plaintiff to relief against the government agents, and the complaint; as to them, must be dismissed. Cf., Jeffery v. Malcolm, 353 F.Supp. 395 (S.D. N.Y.1973). II. Motion of Luttinger. The law in this Circuit has long shielded federal prosecutors with an absolute immunity from any damage actions based on their conduct while acting in their official capacities. Yaselli v. Goff, 12 F.2d 396, 404 (2d Cir. 1926), aff’d per curiam 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927); accord, Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966), cert. denied 386 U.S. 1021, 87 S. Ct. 1367, 18 L.Ed.2d 457 (1967). This immunity was not withdrawn by Bivens. Bethea v. Reid, 445 F.2d 1163, 1165 (3rd Cir.), cert. denied, 404 U.S. 1061, 92 S. Ct. 747, 30 L.Ed.2d 749 (1971). Such immunity is required to assure effective operation of the prosecutor’s office, essential to the public interest. The presence of this immunity precludes plaintiff from asserting a claim against Luttinger ; this part of the complaint therefore also fails. III. The Motion of the Attorneys. Plaintiff originally based his claims against Fisher and Krieger on the civil rights statutes, alleging an effort to deny him his constitutional rights. This basis fails to assert a claim for relief. Previous rulings, cited above, have determined that plaintiff suffered no constitutional deprivation, and the statutes cited by plaintiff are inapplicable herein. Plaintiff however, amended his complaint as against Krieger, to assert ordinary negligence and breach of contract claims. Specifically, plaintiff now contends that Krieger contracted to represent plaintiff with the highest degree of care and that Krieger breached this obligation; moreover, plaintiff charges as malpractice alleged trial errors and omissions by Krieger. The basis of jurisdiction for these claims under state law is diversity and requisite amount; Krieger is" }, { "docid": "23436613", "title": "", "text": "of one additional contention. Plaintiff urges us to hold that even if Alldredge is entitled to immunity under the doctrine applied in Barr, he is not immune from liability for the violation of constitutional rights. This contention is composed of three related arguments: (1) this action for violation of plaintiff’s Fifth Amendment rights is the federal analogue of a suit against state officials under 42 U.S.C. § 1983 (1970) ; (2) § 1983 restricts or abrogates common law immunities; and (3) it would be anomalous for federal officials to be immune from suits alleging violation of rights for which state officers would be liable. We assume without deciding that points (1) and (3) of plaintiff’s contention are correct. Point (2), however, we cannot accept. While some courts have stated that § 1983 should be read as limiting the immunity recognized at common law, this Court, sitting in banc has ruled that § 1983 does not abrogate immunities recognized at common law. Bauers v. Heisel, 361 F.2d 581, 586-588 (3d Cir. 1965), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967). The Bauers decision concerned the immunity of judicial officers to damage suits under § 1983. Adhering to the reasoning of the Supreme Court’s decision in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), that state legislators were immune from § 1983 damage suits, we overruled an earlier decision of this Court and held that state prosecutors are immune from damage actions brought under § 1983. Our reasoning was that the statute creating the § 1983 right of áction should not be construed to be in derogation of the common law, absent express declaration or unavoidable implication in the statute. Id., 361 F.2d at 586-588. Both majority and dissent noted that there may have been some justification for concluding that the statute had such effect, but this Court felt bound by the Supreme Court’s decision in Tenney v. Brandhove. See also Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). This panel feels similarly constrained by our decision in" }, { "docid": "22940447", "title": "", "text": "confusion [that] would result if the single cause of action created by Congress were fragmented in accordance with analogies drawn to rights created by state law and the several different periods of limitation applicable to each state-created right were applied to the single federal cause of action.” Smith v. Cremins, supra at 190. Moreover, we note that the Wakat approach of looking to a general state statute of limitations prevails in most of our sister circuits, while the Jones approach of looking to the underlying tort to determine the applicable state statute of limitations has «been followed consistently only by the ’Third Circuit. We thus hold that the Illinois five-year statute of limitations applies to statutory claims brought under the Civil Rights Acts. Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), is hereby overruled. Turning to the Bivens claims, we recognize plaintiffs argument for application of the same statute of limitations that we apply to civil rights claims is a compelling one. A contrary result could lead to the incongruous application of inconsistent limitations periods to different members of a single conspiracy, based solely on whether an officer alleged to have committed the constitutional violation was employed by the state or federal government. Cf. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1346-47 (2d Cir. 1972) (immunity of state and federal officers). On the other hand, since Bivens actions are not creatures of statute, the state law rationale used above for application of the five-year statute of limitations is not appropriate to Bivens claims. With these considerations in mind, we look to the Illinois statutes of limitations that we might apply. Again we are faced with a choice between the two-year limitations periods for torts in Ill.Rev.Stat. ch. 83, § 15, and the five-year limitations period for “actions not otherwise provided for” in Ill.Rev.Stat. ch. 83, § 16. We can eliminate the first choice for the same reasons we refused to apply the Illinois statute of limitations for torts to" }, { "docid": "22075785", "title": "", "text": "should rule that under one phase of federal law a police officer had immunity and that under another phase of federal law he had no immunity. This incongruity has been commented upon by Judge Gibbons in the Third Circuit, when considering “the liability of State prosecutors under the Civil Rights Act and the liability of federal prosecutors under the federal common law created by the Bivens decision.” Judge Gibbons said he perceived “no reason for such a distinction.” Bethea v. Reid, 445 F.2d 1163, 1166 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (Jan. 24, 1972). The absurdity we refer to is highf lighted by the interesting situation that arose in Carter v. Carlson, supra, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), cert. granted sub nom. District of Columbia v. Carter, 404 U.S. 1014, 92 S.Ct. 683, 30 L.Ed. 661 (Jan. 10, 1972), which involved the immunity vel non of District of Columbia police officers in a Section 1983 suit. Whereas federal officials do not come under Section 1983, District of Columbia officials do. Fortunately, the incongruity of conflicting rulings was avoided when the District of Columbia Circuit ruled that there was no immunity. As Judge Nichols commented in his concurring opinion (447 F.2d at 371, 144 U.S.App.D.C. at 401): I do not think that a Federal officer not subject to § 1983 by its terms, and sued in tort at common law, should be held to enjoy an immunity denied his state or territorial brother similarly situated. This same anomaly is noted in Judge Bell’s concurrence in Anderson v. Nos-ser, supra, 438 F.2d 183, 205 (5th Cir. 1971), rehearing en banc granted, 438 F.2d 205. Accordingly, we hold that the Agents in this case are not immune from damage suits based upon allegations of violations of constitutional rights. II It is a Defense to Allege and Prove Good Faith and Reasonable Belief that the Arrest and Search Were Lawful and Reasonable Having ruled against immunity, we must not be unmindful of the fact that these FBI and Narcotics Agents, whose lives are in" }, { "docid": "4087167", "title": "", "text": "(1959) (opinion of Harlan, J.). But, while I express no view on the immunity defense offered in the instant case, I deem it proper to venture the thought that at the very least such a remedy would be available for the most flagrant and patently unjustified sorts of police conduct.” 403 U.S. at 411, 91 S.Ct. at 2012. This dictum does not, of course, apply to judicial immunity, since in Bivens the Court was dealing only with enforcement agents and not with an assistant prosecutor. There is authority supporting the immunity of United States Attorneys. Norton v. McShane, supra; United States v. Faneca, 332 F.2d 872 (5th Cir. 1964); Yaselli v. Goff, 12 F.2d 396 (2nd Cir. 1926), aff’d per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927). In Barr v. Matteo, 360 U.S. 564, 569, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), the Supreme Court expressly approved Yaselli v. Goff, supra, pointing out that the duties of the defendant, a Special Assistant to the Attorney General, were related to the judicial process. This circuit held, in Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1965), that a State prosecuting attorney was immune from suit under the Civil Rights Act, 42 U.S.C. § 1983 (1964). Writing for the Court en ba/nc Judge Staley said: “In deciding the question of whether a prosecuting attorney is liable for acts done in his official capacity, we must decide whether his duties are sufficiently judicial to cloak him with the same immunity afforded judges or are so closely related to those duties of law enforcement officials as to amerce him with potential civil liability for his imprudent actions. * * * Analogy could support either conclusion, but we believe that both reason and precedent require that a prosecuting attorney should be granted the same immunity as is afforded members of the judiciary. The reasons are clear: his primary responsibility is essentially judicial — the prosecution of the guilty and the protection of the innocent, Griffin v. United States, 295 F. 437, 439-440 (C.A.3, 1924); his office is vested with a vast" }, { "docid": "10813594", "title": "", "text": "30 L.Ed.2d749 (1971). The principle of Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as further defined by the Second Circuit at 456 F. 2d 1339 (1972) has been urged by plaintiff to sustain his claim against the BNDD agents. Bivens created a federal claim under the Fourth Amendment for a violation of constitutional rights through an illegal search and seizure. Even if the complaint could be deemed to be broad enough to encompass a Bivens type claim, the plaintiff herein previously and unsuccessfully litigated the precise issue of the alleged unconstitutional search and seizure. At the criminal trial, on appeal from the conviction, and in several motions for post-conviction relief, 28 U.S.C. § 2255, adverse rulings were entered against this plaintiff on the search and seizure contention. See United States v. Williams, 69 Cr. 266 (Murphy, J.), aff’d without opinion, (2d Cir. Dec. 10, 1970), cert. denied, 402 U.S. 987, 91 S.Ct. 1677, 29 L.Ed.2d 152 (1971); Williams v. United States, 334 F.Supp. 669 (S.D.N.Y.1971) (Weinfeld, J.), aff’d, 463 F.2d 1183 (2d Cir. 1972) (per curiam); 72 Civ. 5118 (S.D.N.Y. March 7, 1973) (Gagliardi, J.). Such rulings preclude plaintiff from relitigating the asserted unconstitutional action. See Rosenberg v. Martin, 478 F.2d 520 (2d Cir. 1973). Accordingly, no construction of the averments in the complaint entitles even a pro se plaintiff to relief against the government agents, and the complaint; as to them, must be dismissed. Cf., Jeffery v. Malcolm, 353 F.Supp. 395 (S.D. N.Y.1973). II. Motion of Luttinger. The law in this Circuit has long shielded federal prosecutors with an absolute immunity from any damage actions based on their conduct while acting in their official capacities. Yaselli v. Goff, 12 F.2d 396, 404 (2d Cir. 1926), aff’d per curiam 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927); accord, Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966), cert. denied 386 U.S. 1021, 87 S. Ct. 1367, 18 L.Ed.2d 457 (1967). This immunity was not withdrawn by Bivens. Bethea v. Reid, 445 F.2d 1163, 1165 (3rd Cir.), cert. denied, 404 U.S." }, { "docid": "17691879", "title": "", "text": "based its holding on the earlier case of Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1965). Holding that judicial immunity extended to state prosecutors, Judge Staley, for the majority, said: “The reasons are clear: his primary responsibility is essentially judicial — the prosecution of the guilty and the protection of the innocent. [H]is office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest. In this respect, it is imperative that he enjoy the same freedom and independence of action as that which is accorded members of the bench.” 361 F.2d at 589-590. The Court of Appeals affirmed the District Court’s dismissal of the action as against the Assistant United States Attorney while expressing no opinion as to the availability of immunity to the remaining defendants (agents of the Federal Bureau of Investigation). 445 F.2d at 1166. The issue here is whether the defense of judicial immunity is available to defendants in an action for damages pursuant to 42 U.S.C. § 1983 allegedly arising from the performance of their official duties as the State Public Defender. Defendants rely on three cases in support of the contention that they should be cloaked with such immunity. In Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L.Ed.2d 288 (1966), the United States Supreme Court held, inter alia, that the defense of judicial immunity was available to a municipal police justice in an action brought against him under 42 U.S.C. § 1983. Bauers v. Heisel, supra, held that a county prosecutor was immune from suit under § 1983 for acts done within the authority of his office. Neither of these cases support defendants’ contention that a state-appointed public defender should be immune from an action brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). In fact, the only mention of the availability of the doctrine of judicial immunity to a defense attorney was by Judge Freedman in a dissenting opinion in Bauers, supra, wherein it was observed : “. . I do not believe that the state’s advocate should" }, { "docid": "22075784", "title": "", "text": "and this laxity would only be encouraged by a grant of immunity. We do not agree with the reasoning of cases that support a contrary conclusion. It would be a sorry state of affairs if an officer had the “discretion” to enter a dwelling at 6:30 A.M., without a warrant or probable cause, and make an arrest by employing unreasonable force. There is another reason for not granting immunity here. In suits brought under the Civil Rights Act, Section 1983, 42 U.S.C. Section 1983 (1970), police officers enjoy no immunity. Pierson v. Ray, supra, 386 U.S. 547, 87 S.Ct. 1213 (1967). The Civil Rights Act does not, however, apply to federal officers. Norton v. McShane, supra, 332 F.2d 855 (5th Cir. 1964). In its decision in this case, the Supreme Court recognized a right of action against federal officers that is roughly analogous to the right of action against state officers that was provided when Congress enacted the Civil Rights Act. It would, we think, be incongruous and confusing, to say the least, if we should rule that under one phase of federal law a police officer had immunity and that under another phase of federal law he had no immunity. This incongruity has been commented upon by Judge Gibbons in the Third Circuit, when considering “the liability of State prosecutors under the Civil Rights Act and the liability of federal prosecutors under the federal common law created by the Bivens decision.” Judge Gibbons said he perceived “no reason for such a distinction.” Bethea v. Reid, 445 F.2d 1163, 1166 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (Jan. 24, 1972). The absurdity we refer to is highf lighted by the interesting situation that arose in Carter v. Carlson, supra, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), cert. granted sub nom. District of Columbia v. Carter, 404 U.S. 1014, 92 S.Ct. 683, 30 L.Ed. 661 (Jan. 10, 1972), which involved the immunity vel non of District of Columbia police officers in a Section 1983 suit. Whereas federal officials do not come under Section 1983," } ]

[ { "docid": "21701212", "title": "", "text": "give effect, if possible, to every clause and word of a statute” (internal quotation marks omitted)). Coneededly, the difference between revocability, on the one hand, and validity and enforceability, on the other, is not obvious. The statute does not define the terms, and their ordinary meanings arguably overlap. Indeed, this Court and others have referred to the concepts of revocability, validity, and enforceability interchangeably. But this ambiguity alone cannot justify ignoring Congress’ clear decision in §2 to repeat only one of the three concepts. To clarify the meaning of §2, it would be natural to look to other portions of the FAA. Statutory interpretation focuses on “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997). “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme ... because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988). Examining the broader statutory scheme, § 4 can be read to clarify the scope of § 2’s exception to the enforcement of arbitration agreements. When a party seeks to enforce an arbitration agreement in federal court, §4 requires that “upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue,” the court must order arbitration “in accordance with the terms of the agreement.” Reading §§ 2 and 4 harmoniously, the “grounds ... for the revocation” preserved in § 2 would mean grounds related to the making of the agreement. This would require enforcement of an agreement to arbitrate unless a party successfully asserts a defense concerning the formation of the agreement to arbitrate, such as fraud, duress, or mutual mistake. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 403-404 (1967) (interpreting § 4 to permit federal courts to" } ]

[ { "docid": "5364681", "title": "", "text": "source on their property. 2. Our task, then, broadly defined, is to discern whether Congress intended successor owners of a point source to be subject to Section 402’s NPDES permitting requirements. “As in all statutory construction cases, we begin with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). If the statutory language is not ambiguous, and “the statutory scheme is coherent and consistent,” our inquiry is at an end. Id. (quota tion omitted). However, if the language of the statute is ambiguous, meaning it can be reasonably understood in two or more different senses, United States v. Quarrell, 310 F.3d 664, 669 (10th Cir.2002), we must dig further. “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). The process of statutory construction has been described as “a holistic endeavor,” taking into account, at a minimum, the “statute’s full text, language as well as punctuation, structure, and subject matter.” United States Nat’l Bank v. Indep. Ins. Agents of Am,., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). We begin, therefore, with the statute’s text: Unless authorized by an NPDES permit, “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). The “discharge of a pollutant,” as noted, means the “addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The Act does not otherwise define the term “addition,” and the legislative history is silent on the matter. See Catskill Mts. Chapter of Trout Unlimited v. City of New York, 273 F.3d 481, 493 (2d Cir.2001). “Addition” is defined by Webster’s New International Dictionary (2002) as “the act or process of adding.” El Paso argues the plain meaning of the word “addition” requires affirmative conduct by some actor before liability attaches. Amicus argues further that" }, { "docid": "19597774", "title": "", "text": ", 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ). 2. Chevron Step One We begin our analysis of the Board's interpretation of § 315(b) by construing the provision. \"As in any case of statutory construction, our analysis begins with the language of the statute.\" Hughes Aircraft Co. v. Jacobson , 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (internal quotation marks and citation omitted). \"The first step 'is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.' \" Barnhart v. Sigmon Coal Co., Inc. , 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ). In doing so, we \"must read the words 'in their context and with a view to their place in the overall statutory scheme.' \" King v. Burwell , -- U.S. ----, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ). This is because statutory \"[a]mbiguity is a creature not of definitional possibilities but of statutory context.\" Brown v. Gardner , 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). Importantly, we may not conclude that a statutory provision is ambiguous until we conclude that resort to all standard forms of statutory interpretation are incapable of resolving any apparent ambiguity which might appear on the face of the statute. See Chevron , 467 U.S. at 843 n.9, 104 S.Ct. 2778. And, in discerning whether a statute is ambiguous, we must take care not to weigh competing policy goals, for \"[i]t is Congress's job to enact policy and it is th[e] [c]ourt's job to follow the policy Congress has prescribed.\" SAS Inst., Inc. v. Iancu , --- U.S. ----, 138 S.Ct. 1348, 1358, 200 L.Ed.2d 695 (2018). a. Plain and Unambiguous Language We \"[s]tart where the statute does.\" SAS , 138 S.Ct. at 1355. Section" }, { "docid": "15211288", "title": "", "text": "concluded that “[i]f Congress believes that the regularly staggered terms should be among these protections, then, of course, it is free to make its intention explicit by including express language in the statute.” The United States and Kirsanow filed this appeal. II. Analysis This case involves a pure legal question of statutory interpretation. Our review of statutory interpretation by a district court is de novo. See, e.g., Butler v. West, 164 F.3d 634, 639 (D.C.Cir.1999). A. We begin our analysis with the language of the statute. See, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 122 S.Ct. 941, 950, 151 L.Ed.2d 908 (2002). “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989)). In determining the “plainness or ambiguity of statutory language” we refer to “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. at 846 (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 2595, 120 L.Ed.2d 379 (1992); McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991)). The disputed provision, 42 U.S.C. § 1975(c) provides: “The term of office of each member of the Commission shall be 6 years. The term of each member of the Commission in the initial membership of the Commission shall expire on the date such term would have expired as of September 30, 1994.” Appellants contend, contrary to the district court’s holding, that the language of the first sentence of § 1975(c) is ambiguous, as the expression “term of office” is subject to at least" }, { "docid": "20647506", "title": "", "text": "the exact wording of the statute, then, a prisoner will be eligible for 54 days for each year of the “term of imprisonment” imposed by the sentencing court. The plain words of the statute are thus effectuated without the need to read the phrase “term of imprisonment” to have two different meanings — the “term imposed” and the “time served” — in the single sentence in which it appears, as the Bureau of Prisons does. Amicus Br., Families Against Mandatory Mínimums, at 2-3. A good lawyer can formulate an argument that makes a hash of almost any statutory, regulatory or contractual language. We must look through the argument. Our approach is practical and circumspect. “As in all statutory construction cases, we begin with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). If the statutory language is not ambiguous, and “the statutory scheme is coherent and consistent,” further inquiry is unneeded. Id. (quotation marks omitted). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997); see also U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (“Statutory construction is a holistic endeavor, and, at a minimum, must account for a statute’s full text, language as well as punctuation, structure, and subject matter.”) (internal quotation and citation omitted). Wright’s arguments present a possible, but implausible, gloss on unambiguous statutory language. If we can fairly do so, we should avoid, not beget, a construction of a statute making it ambiguous. . 18 U.S.C. § 3624(b)(1) provides in relevant part: [A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner’s life, may receive credit toward the service of the prisoner’s sentence," }, { "docid": "12674322", "title": "", "text": "court may resort to canons of statutory interpretation to help resolve the ambiguity. See United States v. Dauray, 215 F.3d 257, 262 (2d Cir.2000). The court may also look at legislative history to determine the intent of Congress. See Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992) (appeals to legislative history will be taken only to resolve statutory ambiguity); Dauray, 215 F.3d at 264 (“When the plain language and canons of statutory interpretation fail to resolve statutory ambiguity, we will resort to legislative history.”); see also 1 United States General Amounting Office, Principles of FEDERAL APPROPRIATIONS Law 2-64 (2d ed. 1991) (hereinafter “GAO Principles”). “Statutory construction ... is a holistic endeavor.” United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assoc., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). See generally William N. Eskridge, Jr. & Philip P. Frickey, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 643-52 (2d ed. 1995). The meaning of a particular section in a statute can be understood in context with and by reference to the whole statutory scheme, by appreciating how sections relate to one another. In other words, the preferred meaning of a statutory provision is one that is consonant with the rest of the statute. See Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) (“In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.”). The meaning of section 226 is not patently clear when it is read together with section 519(n) of the same act. The relevant portion of section 226 states: Notwithstanding any other provision of" }, { "docid": "11838974", "title": "", "text": "in an effort to convert an unambiguous verb tense into claimed ambiguity, let alone then going on to employ that manufactured ambiguity as a stepping stone to altering the plain sense of a statute. Here is the succinct directive in United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) and the cases that it cites: Congress’ use of a verb tense is significant in construing statutes. See, e.g., Otte v. United States, 419 U.S. 43, 49-50, 95 S.Ct. 247, 42 L.Ed.2d 212 (1974); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 63-64, n. 4, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Similarly, Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) made clear that in “all statutory construction cases, we begin with the language of the statute.” Inquiries into the meaning of a statute come to an end “if the statutory language is unambiguous and the statutory scheme is coherent and consistent” (id., quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)(internal quotation marks omitted)). Given the specific and unambiguous manner in which Section 81(a) defines the term “Indian lands,” it is not apparent why the Dictionary Act must even be consulted. Second, even on its own terms the Dictionary Act supports the analysis here: It looks first to “context,” and only if the “context” leaves the meaning open to interpretation does the default provision come into play. As defined by Rowland, 506 U.S. at 199-200, 113 S.Ct. 716 (alterations in original, emphasis added): “Context” here means the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts, and this is simply an instance of the word’s ordinary meaning: “[t]he part or parts of a discourse preceding or following a ‘text’ or passage or a word, or so intimately associated with it as to throw light upon its meaning.” Webster’s New International Dictionary 576 (2d ed.1942). While “context” can carry a secondary meaning of “[a]ssoei-ated surroundings," }, { "docid": "15642909", "title": "", "text": "just because a particular provision may be, by itself, susceptible to differing constructions does not mean that the provision is therefore ambiguous. “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). Statutory context can suggest the natural reading of a provision that in isolation might yield contestable interpretations. Specifically, in interpreting the Bankruptcy Code, the Supreme Court has been reluctant to declare its provisions ambiguous, preferring instead to take a broader, contextual view, and urging courts to “not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986); see also Official Comm. of Unsecured Creditors of Cybergenics Corp., ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548, 559 (3d Cir.2003) (en banc) (hereinafter Cybergenics) (“As the Supreme Court has often noted, ‘[s]tat-utory construction [] is a holistic endeav- or,’ and this is especially true of the Bankruptcy Code.” (quoting United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988))). Thus, ambiguity does not arise merely because a particular provision can, in isolation, be read in several ways or because a Code provision contains an obvious scrivener’s error. Lamie v. United States Trustee, — U.S. -, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). Nor does it arise if the ostensible plain meaning renders another provision of the Code superfluous. Id. at 1031. Rather, a provision is ambiguous when, despite a studied examination of the statutory context, the natural reading of a provision remains elusive. In such situations of unclarity, “[wjhere the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived,” United States v. Fisher, 6 U.S. (2" }, { "docid": "4361262", "title": "", "text": "motion to dismiss pursuant to subsection 707(b)(2). III. Analysis The Trustee challenges the Bankruptcy Court’s ruling that 11 U.S.C. § 707(b)(2) allows the Thomases to take a deduction for car ownership expense in the amount set forth in the Local Standards, even though the Thomases do not make any car payments. Because this appeal “raises a legal question regarding the proper interpretation of the Bankruptcy Code,” the Bankruptcy Court’s order is subject to de novo review. Jobin v. McKay (In re M & L Bus. Mach. Co.), 84 F.3d 1330, 1334-35 (10th Cir.1996); see also Travelers Ins. Co. v. Am. AgCredit Corp. (In re Blehm Land & Cattle Co.), 859 F.2d 137, 138 (10th Cir.1988) (bankruptcy court’s conclusions of law are subject to de novo review). The Court begins with the language of the particular statute at issue. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). The Court’s inquiry ceases if “the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (internal quotation omitted). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. Subsection 707(b)(2) provides that, for purposes of calculating whether a presumption of abuse arises, the debtor’s expenses “shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards.” 11 U.S.C. § 707(b)(2)(A)(ii)(I). The Thomases argue that the language “shall be the ... amounts specified under the ... Local Standards” means that a debtor is allowed the exact dollar figures found in the Standards ($471 and $332 in this case) without reference to whether the debtor actually makes car payments. The Trustee argues that the use of the word “applicable” reveals Congress’s intent to allow deductions for categories of expenses that apply to the particular debtor, and that therefore a debtor may take a transportation" }, { "docid": "23519098", "title": "", "text": "it means and means in a statute what it says there.”’ Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 580 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (citation omitted). When the statute’s language is plain, we enforce it according to its terms, unless such a reading would render it absurd. Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting Hartford, 530 U.S. at 6, 120 S.Ct. 1942). To determine whether the statutory language is plain or ambiguous, we refer to “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). When a statute does not define a term, we construe that term according to its ordinary, contemporary, common meaning. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004). We may resort to a dictionary to determine the plain meaning of a term undefined by a statute. Id. We only refer to the statute’s legislative history if an ambiguity exists or an absurd construction results. Id. We note, however, that statutory construction is a “holistic endeavor.” United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). The overall statutory scheme often clarifies a seemingly ambiguous provision because “only one of the permissible meanings [of that provision] produces a substantive effect that is compatible with the rest of the law.” Id. See also Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) (“[Statutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”) (citation omitted). Congress has deemed the expense of owning a car to be a basic expense that debtors can deduct in calculating what" }, { "docid": "22851009", "title": "", "text": "the child in private school.” Bd. of Educ. v. Tom F., 2005 WL 22866, at *3 (S.D.N.Y. Jan. 4, 2005). We disagree. As in all statutory interpretation cases, we begin with the language of the statute. Our first task “is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). Our inquiry ends, if the language of the statute is unambiguous and “the statutory scheme is coherent and consistent,” unless the case comes within the category of cases in which the result reached by applying the plain language is sufficiently absurd to override its unambiguous terms. Id. at 450, 459, 122 S.Ct. 941 (internal quotation marks and citation omitted); United States v. X-Citement Video Inc., 513 U.S. 64, 69, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); Pub. Citizen v. United States Dep’t of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989); Green v. Bock Laundry Mach. Co., 490 U.S. 504, 509, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989). If, however, the terms of a statute are ambiguous, “we resort to the canons of statutory construction to help resolve the ambiguity.” Gottlieb v. Carnival Corp., 436 F.3d 335, 337 (2d Cir.2006). Moreover, while the Supreme Court has said that it “rarely” invokes the need to avoid an absurd result to override the plain language of a statute, Barnhart, 534 U.S. at 459, 122 S.Ct. 941, we have long held that where a statute is ambiguous, it “should be interpreted in a way that avoids absurd results.” See, e.g., United States v. Dauray, 215 F.3d 257, 264 (2d Cir.2000). Whether a statute is plain or ambiguous “is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). We have applied a similar approach in determining whether a" }, { "docid": "23503610", "title": "", "text": "that the forms that Ryan-Webster falsified here are “other documents” within the meaning of the first paragraph, I respectfully dissent from Parts III.A. and IV. of the panel’s opinion. I concur in the remainder of the opinion. In interpreting statutes, our goal “is always to ascertain and implement the intent of Congress.” Scott v. United States, 328 F.3d 132, 138 (4th Cir.2003). Accordingly, “[t]he first step of this process is to determine whether the statutory language has a plain and unambiguous meaning.” Id. at 139 (citing Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002)). If the statutory language is unambiguous and the statutory scheme is coherent and consistent, the inquiry ceases. Id. When assessing the ambiguity, or lack thereof, of statutory language, courts “generally give words their ordinary, contemporary, and common meaning.” Id. But, the language itself is not the sole determinant of meaning, or even of whether the language is ambiguous. Courts also must refer to “the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). At bottom, my colleagues’ error lies in their failure to abide by this principle of statutory construction. The majority’s analysis, ante at 359-363, has some persuasive appeal if one reads the first paragraph’s catch-all phrase in isolation: the phrase “other documents prescribed by statute or regulation for entry into ... the United States,” without any context, could plausibly be interpreted to cover application documents like the ETA-750 and the 1-140. 18 U.S.C.A. § 1546(a). These documents, as the majority correctly notes, are “prescribed by statute or regulation” and, although they do not themselves allow entry into the country, they are submitted as part of one of the avenues through which an immigrant might gain the right to lawfully “enter” the country. When read in context, however, the first paragraph’s reach is unambiguously narrower. Two canons of construction instruct us how properly to ascertain the meaning of statutory language from the" }, { "docid": "11588049", "title": "", "text": "the Bankruptcy Code to this Court). However, bankruptcy courts exercise limited power to enter final orders and judgments with respect to matters that are not core. E.g., Stern v. Marshall, 564 U.S. 462, 474-75, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). The “liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution” in a bankruptcy case is not core, 28 U.S.C. § 157(b)(2)(B), and must be tried in the District Court where the bankruptcy case is pending or where the claim arose. 28 U.S.C. § 157(b)(5). Accordingly, the threshold issue is whether the Claimants’ defamation and related claims assert personal injury tort claims within the meaning of these statutory provisions. The starting point for the interpretation of any statute is the plain language of the statute itself. United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 5.Ct. 1026, 103 L.Ed.2d 290 (1989). “The plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” Id. at 242, 109 S.Ct. 1026 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)); accord Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000). Plainness or ambiguity is determined by reference to the statutory language itself, “the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992)); accord United Sav. Assn. of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (“Statutory construction ... is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme ...." }, { "docid": "4070011", "title": "", "text": "to the Portal-to-Portal Act, specifically 29 U.S.C. § 254(a); and it is de minimis. The district court based its FLSA ruling on § 203(o), and we do the same. Section 203(o) excludes “any time spent changing clothes or washing” from “the hours for which an employee is employed” if such time “was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” 29 U.S.C. § 203(o). We hold that donning and doffing the PPE at issue in this case is changing clothes and that there is a custom or practice of excluding donning and doffing time from measured working time under the collective bargaining arrangement between the Union and Butterball. We, therefore, affirm the district court’s ruling that Butterball did not violate the FLSA by failing to pay plaintiffs for donning and doffing time. “Changing Clothes” The meaning of “changing clothes” under § 203(o) is a question of first impression in this circuit. As with all statutory interpretation cases, we begin with the language of the statute. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). If the statute has a “plain and unambiguous meaning with regard to the particular dispute in the case” and the statutory scheme is coherent and consistent, our inquiry ends. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. We conclude that the term “changing clothes” in § 203(o) is ambiguous. As evidenced by the differing interpretations of several courts and the United States Department of Labor Wage and Hour Division (the Wage and Hour Division), the word “clothing” is susceptible of multiple meanings, particularly in the industrial labor context where specialized apparel and equipment is often worn. The other circuit" }, { "docid": "21769137", "title": "", "text": "121 (2000)); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (interpreting statutory language requires examination of “the specific context in which ... language is used” and “the broader context of the statute as a whole”). When faced with an undefined term such as “gross negligence,” which is a “nebulous one,” Farmer v. Brennan, 511 U.S. 825, 836 n.4, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), “a court [must] look to the intent of Congress as revealed in the history and purposes of the statutory scheme,” Penn Allegh Coal Co. v. Holland, 183 F.3d 860, 864 (D.C. Cir. 1999) (internal quotation marks omitted); see also Nat. Res. Def. Council, Inc. v. Browner, 57 F.3d 1122, 1127 (D.C. Cir. 1995) (“Reference to statutory design and pertinent legislative history may often shed new light on congressional intent, notwithstanding statutory language that appears ‘superficially clear.’ ”). A statutory “provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme ... because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). After all, “[cjourts have a duty to construe statutes, not isolated provisions.” Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 290, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010) (internal quotation marks omitted). The OPA is one of a series of statutes regulating natural resource damages resulting from oil spills or other discharges of hazardous chemicals. These statutory schemes typically cap and limit liability, unless the responsible party has engaged in “willful” or “gross” negligence, or “willful misconduct.” See, e.g., Clean Water Restoration Act of 1966, Pub. L. No. 89-753, § 211(a), 2(3), 80 Stat. 1246, 1252-53 (defining “discharge” as “any grossly negligent, or willful spilling, leaking, pumping, pouring, emitting, or emptying of oil”); Water Quality Improvement Act of 1970 (“WQIA”), Pub. L. No. 91-224, § 11(f)(1), 84 Stat." }, { "docid": "4070012", "title": "", "text": "all statutory interpretation cases, we begin with the language of the statute. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). If the statute has a “plain and unambiguous meaning with regard to the particular dispute in the case” and the statutory scheme is coherent and consistent, our inquiry ends. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. We conclude that the term “changing clothes” in § 203(o) is ambiguous. As evidenced by the differing interpretations of several courts and the United States Department of Labor Wage and Hour Division (the Wage and Hour Division), the word “clothing” is susceptible of multiple meanings, particularly in the industrial labor context where specialized apparel and equipment is often worn. The other circuit courts that have considered the meaning of “changing clothes” under § 203(o) have reached differing conclusions. The Fourth, Fifth, Sixth, Seventh, and Eleventh Circuits have held that donning and doffing PPE is changing clothes within § 203(o). See Spoerle v. Kraft Foods Global, Inc., 614 F.3d 427, 428 (7th Cir. 2010) (meat production workers’ boots, hard hats, smocks, and hair nets), cert. denied, — U.S. —, 131 S.Ct. 933, 178 L.Ed.2d 753 (2011); Franklin v. Kellogg Co., 619 F.3d 604, 614-15 (6th Cir.2010) (frozen food workers’ uniforms and PPE, including hair nets, safety glasses, ear plugs, and hard hats); Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 215-18 (4th Cir.2009) (poultry workers’ PPE), cert. denied, — U.S. —, 131 S.Ct. 187, 178 L.Ed.2d 42 (2010); Anderson v. Cagle’s, Inc., 488 F.3d 945, 955-56 (11th Cir. 2007) (poultry workers’ PPE); Bejil v. Ethicon, Inc., 269 F.3d 477, 480 n. 3 (5th Cir.2001) (lab coats, hair covers, and shoe covers). The Ninth Circuit has reached a different conclusion, holding that meat production workers’ unique PPE (for" }, { "docid": "3087572", "title": "", "text": "a holistic endeavor,” United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). In determining the extent of stay termination, the Court’s interpretive quest begins, but does not end, with the text of the statute. See United States v. Yellin (In re Weinstein), 272 F.3d 39, 43 (1st Cir. 2001) (indicating that the text of one section of the Bankruptcy Code controls if its meaning is clear, but that a single section need not be read in isolation if other sections provide textual evidence of the meaning of the section in question). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). When a statute is ambiguous, it may be appropriate to consult legislative history as an interpretive aid. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 737, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). C. Possible Interpretations of Section 862(c)(3)(A) The language of section 362(c)(3)(A) has resulted in multiple lines of authority. One line interprets this section, and specifically the phrase “with respect to' the debtor,” to effect a termination of the stay as to’ the debtor and the debtor’s property, but not as to property of the estate. See, e.g., Holcomb v. Hardeman (In re Holcomb), 380 B.R. 813 (10th Cir. BAP 2008); Jumpp v. Chase Home Fin., LLC (In re Jumpp), 356 B.R. 789 (1st Cir. BAP 2006); In re Jones, 339 B.R. 360 (Bankr. E.D.N.C. 2006). Mr. Smith favors this line of cases, which is sometimes described as the majority view. See, e.g., In re Holcomb, 380 B.R. at 815. The second line of authority reads section 362(c)(3)(A), and specifically the phrase “with respect to the debtor,” to terminate the stay as to a repeat-filing debtor, that 'debtor’s property, and property of the debtor’s estate, but not as to the" }, { "docid": "12199835", "title": "", "text": "a solution must be based on a plausible construction of the language of the statute. II If there is anything “plain” about the “disposable income” portion of the statute, it is that, in context, it is not “plain.” Justice Thomas, writing for a unanimous Supreme Court, has given us the applicable rule of statutory construction for when one may look beyond the mere words of the statute: “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (9-0 decision). Robinson is consistent with the observation of Justice Scalia, also writing for a unanimous Supreme Court, that the interpretation of the Bankruptcy Code “is a holistic endeavor” and that “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (9-0 decision). This implicates what is known as the doctrine of “whole statute” interpretation that we recently have described in connec tion with a different Bankruptcy Code conundrum. Wechsler v. Macke Int'l Trade, Inc. (In re Macke Int’l Trade, Inc.), 370 B.R. 236, 252 (9th Cir. BAP 2007); 2 A Norman J. Singer, Sutherland Statutory Constr. § 46:5 (5th ed.1992). When one considers the “whole statute,” paths toward a resolution more satisfactory to me emerge. Ill One solution is based on a close reading of the provisions that implicate the term “current monthly income.” The context of § 1325(b) “disposable income” cannot be viewed in isolation from the definition of “current monthly income” at § 101(10A), and the adjustments to “current monthly income” and" }, { "docid": "3087571", "title": "", "text": "the debtor on the 30th day after the filing of the later case[.] 11 U.S.C. § 362(c)(3)(A). At the outset, a few observations about the statute are in order. First, the statute is directed to “the stay under subsection (a)” not to any of the various parts of the stay. See id. Second, section 362(c)(3)(A) terminates the stay “with respect to any action taken with respect to &■ debt or property securing such debt or with respect to any lease[.]” Id. This clause refers to “property securing [a] debt,” without distinguishing between property of the debtor on one hand and property of the estate on the other hand. See id. Third, the stay terminates “with respect to the debtor[.]” Id. Fourth, the stay terminates thirty days after the filing of the later case. Id. Although the statute can be dissected in this manner and although that dissection may be helpful in divining the meaning of the statute, none of these phrases should be interpreted in isolation or be given undue emphasis. “Statutory construction ... is a holistic endeavor,” United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). In determining the extent of stay termination, the Court’s interpretive quest begins, but does not end, with the text of the statute. See United States v. Yellin (In re Weinstein), 272 F.3d 39, 43 (1st Cir. 2001) (indicating that the text of one section of the Bankruptcy Code controls if its meaning is clear, but that a single section need not be read in isolation if other sections provide textual evidence of the meaning of the section in question). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). When a statute is ambiguous, it may be appropriate to consult legislative history as an interpretive aid. See Fla. Power" }, { "docid": "11588050", "title": "", "text": "statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” Id. at 242, 109 S.Ct. 1026 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)); accord Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000). Plainness or ambiguity is determined by reference to the statutory language itself, “the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992)); accord United Sav. Assn. of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (“Statutory construction ... is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme .... ”). Where the statute’s language and context fail to resolve the ambiguity, a court may resort, in order, to canons of statutory construction and legislative history to aid in its interpretation. United States v. Colasuonno, 697 F.3d 164, 173 (2d Cir. 2012); Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir. 2005). The phrase “personal injury tort or wrongful death claims,” or some variation, was introduced into title 28 under the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, 98 Stat. 333 (1984) (the “1984 Amendments”), and appears in several provisions. See 28 U.S.C. §§ 157(b)(2)(B) & (O), 157(b)(5), 1411(a) (addressing the right to trial by jury with regard to a personal injury or wrongful death claim). However, title 28 does not define “personal injury” or “personal injury tort,” and the Second Circuit has not construed these terms as used in the cited sections. See In re Residential Capital, LLC, 536 B.R. 566, 571 (Bankr. S.D.N.Y. 2015). Lower courts in the Second Circuit and elsewhere have adopted" }, { "docid": "5583523", "title": "", "text": "or ambiguous. Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004); United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); see also In re Miller, 462 B.R. 421, 429 (Bankr.E.D.N.Y.2011). “[I]n determining plainness or ambiguity, courts are directed to look ‘to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’ ” In re Phillips, 485 B.R. 53, 56 (Bankr.E.D.N.Y.2012), quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). If the statutory language is clear, a court’s analysis must end there. Hartford Underwriters Ins. Co. v. Union Planters Bank, Nat’l Ass’n, 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (“[W]hen the statute’s language is plain, the sole function of the courts&emdash;at least where the disposition required by the text is not absurd&emdash;is to enforce it according to its terms.”). However, “[sjtatutory language is ambiguous if it is susceptible to two or more reasonable meanings.” Phillips, 485 B.R. at 56. In that setting, where the plain language as clarified by context fails to resolve any statutory ambiguity, a court may resort to canons of statutory construction to aid in its interpretation. United States v. Colasuonno, 697 F.3d 164, 173 (2d Cir.2012); United States v. Dauray, 215 F.3d 257, 264 (2d Cir.2000). Significantly, statutory construction is a holistic endeavor; thus, a statute must be interpreted in light of the statutory scheme as a whole. United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 865, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988); Phillips, 485 B.R. at 59. Thus, this Court will first consider the plain language of § 1521(a)(7). Section 1521(a) provides that the bankruptcy court may grant a foreign representative “any appropriate relief,” including staying various aspects of court proceedings involving the debtor or its assets, suspending rights to transfer, encumber or dispose of the debtor’s assets, providing for discovery, granting powers to the foreign representatives to administer" } ]

[ { "docid": "7482228", "title": "", "text": "890, 87 L.Ed. 290 (1943) (“The Constitution can hardly be thought to deny to one subjected to the restraints of [a licensing law] the right to attack its constitutionality, because he has not yielded to its demands”). And as to City’s review procedures, Alleghany Corp. v. Haase, 896 F.2d 1046, 1050 (7th Cir.1990) teaches that “there is no general requirement of exhausting state judicial or administrative remedies before bringing a federal suit” to challenge the propriety of an administrative decision. All of that does not of course mean that a party may automatically challenge the facial constitutionality of every law that has any effect on its ability to practice its expression. Instead, as Lakewood, 486 U.S. at 759, 108 S.Ct. at 2145 puts it; The law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks. All that Admiral needs to show at this stage in terms of its standing to bring a facial challenge is that the ordinance at issue in Count IX has a close enough nexus to expression-related conduct to pose the threat of censorship expressed in Lakewood. Although the question is not free from doubt, Code § 4-16-010 defines “amusement” as, and requires a license for, “any exhibition, performance, presentation or show for entertainment purposes, including ... any theatrical, dramatic, musical or spectacular performance, promotional show, motion picture show ... or similar exhibition such as ... dancing.” By its terms that provision seeks to regulate conduct commonly associated with expression (along with non-expression-related conduct) and is therefore subject to facial attack in that respect by Admiral. Viability of Surviving Claims With that entire set of preliminary issues having been resolved, at long last this opinion can turn to the sustainability of the remaining challenged claims — Counts I to III, IX, XI and XII — in Rule 12(b)(6) terms. They will be dealt with in sequence. Counts I and II Counts I and II assert that City lacks power to effect the custodial arrest of Admiral’s dancers based upon" } ]

[ { "docid": "7797252", "title": "", "text": "this finding was clearly restricted to the issue of personal jurisdiction and did not include any findings regarding the affirmative defense of sovereign immunity. In addition, the tribal court’s ruling came before Hicks voluntarily dismissed the State of Nevada and all state defendants named in their official capacities. Therefore, the issue of sovereign immunity as an affirmative defense for state officials named individually in this action has not been considered on the merits by the tribal court. We therefore do not reach the issue. Nevada also argues that the district court erred in holding that it was precluded by considerations of comity from ruling on the state officials’ claims of qualified immunity. Nevada contends that the state officials sued by Hicks were entitled to summary judgment on the issue of tribal court jurisdiction because Hicks failed to overcome their claims of qualified immunity from suit. However, Nevada does not argue that its claim fits into any of the exceptions to the exhaustion requirement. Suggesting that no case has yet determined the existence or nature of the qualified immunity available to state officials in tribal court, Nevada instead invites this court to define the applicable test. We decline to do so. The Supreme Court in Strate reaffirmed its earlier decisions requiring, as a matter of comity and with very narrow exceptions, the exhaustion of tribal remedies before the federal courts rule on the jurisdiction of the tribal courts. See Strate, 520 U.S. 438, at 448-454, 117 S.Ct. 1404, 137 L.Ed.2d 661 (discussing Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987), and National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985)); see also Burlington Northern R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1245 (9th Cir.1991) (emphasizing the exhaustion requirement). The district court correctly applied this exhaustion requirement to the issue of qualified immunity. See, e.g., Stock West Corp. v. Taylor, 964 F.2d 912, 920 (9th Cir.1992) (en banc) (holding that the district court abused its discretion in addressing a qualified immunity" }, { "docid": "3978913", "title": "", "text": "here the district court has misinterpreted the applicable law. Our review of the record does not support dismissal. There is no pending tribal court proceeding, the principal issues presented are of state or federal law, and the tribal court possesses no special expertise in the subject matter. See Burlington N. R.R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901 n. 2 (9th Cir.1991). Comity does not suffice as a basis for affirmance under these facts. C In reaching the conclusion that deference to the tribal courts was not required in this instance, we are not placing the federal courts “in direct competition with the tribal courts,” LaPlante, 480 U.S. at 16, 107 S.Ct. at 976. The tribal courts have superior expertise in interpreting their own tribal law. See National Farmers Union, 471 U.S. at 855-56, 105 S.Ct. at 2453-54; Burlington Northern v. Crow Tribe Council, 940 F.2d at 1246-47. In addressing the question before this court, however, we have not resorted to an examination of tribal law; for example, we have not considered the possible reach of the Colville Tribes’ jurisdictional statute, Colville Law & Order Code § 1.3.01. We render no opinion as to the scope of the Colville Tribes’ tribal court jurisdiction, or whether the dispute between Stock West and Taylor might fall within the parameters of that jurisdiction. Nor do we hold that this case falls within one of the exceptions to the exhaustion requirement recounted in National Farmers Union and LaPlante. See LaPlante, 480 U.S. at 19 n. 12, 107 S.Ct. at 978 n. 12; National Farmers Union, 471 U.S. at 856 n. 21, 105 S.Ct. at 2454 n. 21. We have not concluded that Taylor’s assertion of concurrent tribal court jurisdiction is motivated by a desire to harass, is “patently violative of express jurisdictional prohibitions,” or that exhaustion would be futile. Id. Rather, we conclude that it is not necessary to satisfy one of these exceptions when the dispute is not a reservation affair and does not arise on the reservation. In this case, therefore, the federal court was free to exercise its concurrent jurisdiction," }, { "docid": "84709", "title": "", "text": "comity” that preclude most pre-trial grants of habeas relief in state cases are reflected here in the exhaustion requirement. See Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 15 & 16 n. 8, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (holding, in the context of a civil case, that “considerations of comity direct that tribal remedies be exhausted before the question is addressed by the District Court” and that “[e]xhaustion is required as a matter of comity, not as a jurisdictional prerequisite”). Duro itself was a pre-trial habeas case, and even with all the discussion over whether the writ should have been granted, it does not appear to have been disputed that the district court’s review of the petition was proper. Our cases make clear that pre-trial relief was appropriate in these narrow circumstances. “[W]hen a tribal court attempts to exercise criminal jurisdiction over a person not a member of a tribe, no requirement of exhaustion need be enforced.” Selam v. Warm Springs Tribal Correctional Facility, 134 F.3d 948, 954 (9th Cir.1998) (quoting Wetsit v. Stafne, 44 F.3d 823, 826 (9th Cir.1995)). Further, to the extent that any exhaustion was required in this case, it would appear that Means has in fact met the requirement. He presented his jurisdictional argument first to the Tribal Court, and then to the Northern Cheyenne Court of Appeals. Both courts denied his claim before he filed his petition with the district court. Since the purpose of the exhaustion requirement is to promote “tribal self-government and self-determination” by allowing tribal courts to “have the first opportunity to evaluate the factual and legal bases for the challenge to [their] jurisdiction,” the requirement would appear to have been satisfied here. Iowa Mutual 480 U.S. at 15-16, 107 S.Ct. 971. The Northern Cheyenne courts appeal’ to have had a full opportunity to examine the jurisdictional question. Therefore, we affirm the district court’s exercise of jurisdiction over Means’ habeas petition. C. Conclusion While we affirm the district court’s exercise of jurisdiction over Means’ pre-trial ha-beas petition, we reverse the denial of that petition, and remand so that the" }, { "docid": "7072221", "title": "", "text": "Finally, the Court remanded the case to the district court to determine whether “the federal action should be dismissed, or merely held in abeyance pending the development of further Tribal Court proceedings.” Id. at 857, 105 S.Ct. at 2454. The Supreme Court reaffirmed the tribal exhaustion doctrine in Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987). There, after an accident on their reservation, members of the Blaekfeet Indian Tribe brought suit in tribal court alleging tort claims against other Tribe members and a claim against an insurance company for bad faith refusal to settle. Id. at 11, 107 S.Ct. at 973-74. The insurer subsequently brought suit in federal district court alleging diversity jurisdiction and seeking a declaration that it had no duty to defend or indemnify with respect to the accb dent. Id. at 12-13, 107 S.Ct. at 974-75. The Supreme Court held that the tribal exhaustion requirement applies as well where the federal court’s jurisdiction is based on diversity: “Regardless of the basis for jurisdiction, the federal policy supporting tribal self-government directs a federal court to stay its hand in order to give the tribal court a. full opportunity to determine its own jurisdiction.” Id. at 16, 107 S.Ct. at 976. Regarding that policy, the Court noted that “[tjribal courts play a vital role in tribal self-government,” and that a “federal court’s exercise of jurisdiction over matters relating to reservation affairs can ... impair the authority of tribal courts.” Id. at 15, 107 S.Ct. at 976. In Iowa Mutual, the Court also made clear that exhaustion of tribal court remedies “is required as a matter of comity, not as a jurisdictional prerequisite.” Id. at 16 n. 8, 107 S.Ct. at 976 n. 8. The Court stated that exhaustion includes, at a minimum, tribal appellate court review.' Id. at 17, 107 S.Ct. at 977. If the tribal appellate court upholds a finding of tribal court jurisdiction, the plaintiff may then challenge that ruling in federal court. Id. at 19, 107 S.Ct. at 978. Finally, the Court remanded to the district court to" }, { "docid": "14451744", "title": "", "text": "granted the motion for lack of subject matter jurisdiction. The ruling was correct though based upon the wrong reason. The dismissal should have been based on comity, rather than lack of subject matter jurisdiction. Federal policy favors the promotion of tribal self-government. Iowa Mutual Ins. Co. v. LaPlante, — U.S.-, 107 S.Ct. 971, 975, 94 L.Ed.2d 10 (1987); National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856, 105 S.Ct. 2447, 2454, 85 L.Ed.2d 818 (1985); A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1415 (9th Cir.), cert. denied, — U.S. -, 106 S.Ct. 2008, 90 L.Ed.2d 659 (1986). Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. LaPlante, 107 S.Ct. at 976; see also Montana v. United States, 450 U.S. 544, 565-66, 101 S.Ct. 1245, 1258-59, 67 L.Ed.2d 493 (1981). Civil jurisdiction over such activities presumptively lies in the tribal courts unless limited by federal statute or a specific treaty provision. LaPlante, 107 S.Ct. at 976; see also R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979, 983 (9th Cir.1983) (tribal court is generally the exclusive forum for adjudication of disputes, between Indians and non-Indians, which arise on the reservation), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). If unconditional access to federal court were permitted in diversity and federal question cases, the court would be in direct competition with the tribal court, impairing the latter’s authority over Indian affairs. LaPlante, 107 S.Ct. at 977. Considerations of comity require the exhaustion of tribal remedies before the claim may be addressed by the district court. Id. at 976; National Farmers Union Ins. Cos., 471 U.S. at 857, 105 S.Ct. at 2454. The Supreme Court held that a federal court may not exercise diversity jurisdiction over a civil dispute relating to reservation affairs before an appropriate Indian tribal court system has first had an opportunity to determine its own jurisdiction. The exhaustion requirement does not deprive the federal courts of subject matter jurisdiction. LaPlante, 107 S.Ct. at 976" }, { "docid": "6101465", "title": "", "text": "judgment of the court vacating the dismissal on tribal exhaustion grounds, but would reach this result in a different way. Similarly, I agree with the court’s reasoning and conclusions regarding the alleged sovereign immunity waiver in the ordinance creating the tribal housing authority, but write separately to express some concerns arising from the particular facts of this case. I concur fully in the thoughtful majority opinion in all other respects. With regard to the tribal exhaustion issue, I would hold that the plaintiff should not have to exhaust her claims in Tribal Court because the defendants have not asserted that a Tribal Court as such exists. Exhaustion would thus be futile. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 n. 12, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (recognizing the futility exception to the tribal exhaustion rule). The defendants seek remand to the Tribal Council (the tribe’s legislative body) by asserting that this body is and has always been the tribe’s judicial forum as well. As detailed above, see supra § I.C.l, the accuracy of this representation is open to debate, to say the least. The question whether a Tribal Court exists is analytically prior to the question whether Tribal Court exhaustion is required in any given case. Since the defendants do not contend that there exists a Tribal Court as such at this time, we should vacate the' dismissal without reaching the exhaustion issue. The federal circuits which adjudicate the majority of the Indian law cases in this country have all held that the necessity of tribal exhaustion does not turn on whether a case is also pending in Tribal Court. See, e.g., Duncan Energy Co. v. Three Affiliated Tribes, 27 F.3d 1294, 1299-1301 (8th Cir.1994), cert. denied, 513 U.S. 1103, 115 S.Ct. 779, 130 L.Ed.2d 673 (1995); Texaco, Inc. v. Zah, 5 F.3d 1374, 1376 (10th Cir.1993); Burlington Northern R.R. v. Crow Tribal Council, 940 F.2d 1239, 1246 (9th Cir.1991); see also Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Housing Auth., 207 F.3d 21, 31 (1st Cir.2000). These circuits all hold that if a suit" }, { "docid": "14451743", "title": "", "text": "EUGENE A. WRIGHT, Circuit Judge: The question presented on this appeal is whether a federal district court may exercise jurisdiction over a civil suit brought by an Indian concerning a contract with a non-Indian corporation for work on tribal lands, without first requiring the Indian to exhaust his remedies in tribal court. Wellman, a member of the Blackfeet Indian Tribe, lives on the Blackfeet Reservation. He operates Craig Wellman Construction. Chevron is incorporated in Pennsylvania. It has an oil and gas lease from the Blackfeet Tribe for its drilling operations on the reservation, and the lease requires that preference be shown to Indian contractors. Chevron contracted with Wellman for the construction of an access road to one of Chevron’s exploratory wells located on the reservation. The Tribe itself was not a party to Wellman’s contract. After he commenced work on the project, Chevron terminated the contract. Wellman sued in district court for breach of contract. Jurisdiction was based on diversity of citizenship, 28 U.S.C. § 1332(a) (1982). Chevron moved to dismiss, and the district court granted the motion for lack of subject matter jurisdiction. The ruling was correct though based upon the wrong reason. The dismissal should have been based on comity, rather than lack of subject matter jurisdiction. Federal policy favors the promotion of tribal self-government. Iowa Mutual Ins. Co. v. LaPlante, — U.S.-, 107 S.Ct. 971, 975, 94 L.Ed.2d 10 (1987); National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856, 105 S.Ct. 2447, 2454, 85 L.Ed.2d 818 (1985); A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1415 (9th Cir.), cert. denied, — U.S. -, 106 S.Ct. 2008, 90 L.Ed.2d 659 (1986). Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. LaPlante, 107 S.Ct. at 976; see also Montana v. United States, 450 U.S. 544, 565-66, 101 S.Ct. 1245, 1258-59, 67 L.Ed.2d 493 (1981). Civil jurisdiction over such activities presumptively lies in the tribal courts unless limited by federal statute or a specific treaty provision. LaPlante, 107 S.Ct. at 976; see" }, { "docid": "3823839", "title": "", "text": "offices, where it allegedly committed insurance bad faith. Allstate’s position, that the court must look to the off-reservation settlement activities, is foreclosed by the Supreme Court’s holding in Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987), in which a tribal court action was allowed to continue under nearly identical circumstances. LaPlante, a member of the Blackfeet Tribe, had been injured in an automobile accident on the Blackfeet reservation in the course of his employment for the Well-man Ranch, a company owned by Blackfeet Indians. After unsuccessful attempts to settle his claim for injuries, LaPlante sued Wellman’s off-reservation insurer, Iowa Mutual, in tribal court for bad faith refusal to settle. Iowa Mutual sued in federal district court for a declaration that LaPlante’s injuries were not covered by the policy in question. See id. at 11-13, 107 S.Ct. 971. Following its earlier decision in National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), the Court held that the federal court should dismiss or stay the action until Iowa Mutual had exhausted its tribal court remedies. See LaPlante, 480 U.S. at 19-20, 107 S.Ct. 971. Allstate stands in the same position as Iowa Mutual. As in LaPlante, the insured and injured parties in this case were tribal members who lived on the reservation; the accident occurred on the reservation; and the insurer is an off-reservation entity that sold a policy to a tribal member. La-Plante thus indicates that exhaustion is required here. We followed LaPlante in Stock West Corp. v. Taylor, 964 F.2d 912 (9th Cir.1992). Stock West, a non-Indian company that operated a sawmill on a reservation, became involved in a protracted contractual dispute with the tribe. Stock West sued the tribe’s attorney in federal court, alleging that the attorney had committed malpractice and misrepresentation by delivering a false and misleading letter to a Portland bank that had considered a loan to Stock West for the construction of the sawmill. The attorney moved for dismissal on the ground that exhaustion was required under LaPlante and" }, { "docid": "13449259", "title": "", "text": "doctrine under the reasoning of the district court (“The foundation was firm”) might induce sufficient uncertainty to cause a lay person to delay filing suit until a statute of limitation runs or a witness becomes unavailable. The law should provide sufficient certainty for litigants to effect rational decisions. As much as tribal exhaustion might have been desirable in the initial stages of this suit, to require a plaintiff to turn back the clock and exhaust previously unavailable remedies is contrary to judicial efficiency and prejudicial to an individual who brings suit in a forum available for immediate resolution of his claim. The Supreme Court also has recognized that the doctrine of exhaustion of tribal remedies is analogous to dismissals under the doctrine of abstention. Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 16 n. 8, 107 S.Ct. 971, 976 n. 8, 94 L.Ed.2d 10 (1987). Under abstention analysis, a district court must determine whether “the opportunity to raise and have timely decided” before a state tribunal was available to the plaintiff when he brought his federal suit. Gibson v. Berryhill, 411 U.S. 564, 575, 93 S.Ct. 1689, 1696, 36 L.Ed.2d 488 (1973). As Gibson points up, if the state tribunal is deemed inadequate, abstention is not necessary. Thus, if there is delay by the agency, or the agency lacks power to grant effective relief, or is biased, then abstention is not necessary. Id. at 575 n. 14, 93 S.Ct. at 1696 n. 14. Obviously, to urge that a plaintiff must exhaust his tribal remedies at a time when a tribal court does not exist would, indeed, inject a futile requirement. Although the district court did not require this, its post facto reasoning would have a similar effect. Under the circumstances, we hold as a matter of law that Krempel, who had filed a timely claim in an existing forum, was not required to exhaust tribal remedies at a later time when the tribal court came into existence. Judgment vacated and remanded for further proceedings. . Futility is also an exception to other exhaustion doctrines. See e.g., Duckworth v. Serrano," }, { "docid": "13208167", "title": "", "text": "471 U.S. 845, 850-53, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985)). But a plaintiff must first exhaust tribal court remedies. See, e.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987); Nat’l Farmers, 471 U.S. at 856-57, 105 S.Ct. 2447; see also Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir.2008) (applying the doctrine). Plaintiff acknowledges the doctrine generally but argues that it does not apply for two reasons. First, she argues that she already exhausted her tribal court remedies. In the alternative, she argues that she need not exhaust tribal court remedies because of an exception to the doctrine. 1. Full Exhaustion of Tribal Court Remedies Plaintiff argues that she exhausted her tribal court remedies because she sought—and received—a ruling by the tribal trial court on jurisdiction and because she sought a ruling by the tribal appellate court. Plaintiff argues that exhaustion is complete notwithstanding the fact that the tribal appellate court has not yet ruled on the merits of the jurisdictional issue because it lacks authority to accept interlocutory appeals. This issue is controlled by Iowa Mutual. The relevant facts were identical: “Although the Blackfeet Tribal Code establishes a Court of Appeals, see ch. 11, § 1, it does not allow interlocutory appeals from jurisdictional rulings. Accordingly, appellate review of the Tribal Court’s jurisdiction can occur only after a decision on the merits.” 480 U.S. at 12, 107 S.Ct. 971. The Court in Iowa Mutual held that [t]he federal policy of promoting tribal self-government encompasses the development of the entire tribal court system, including appellate courts. At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts. In this case, the Tribal Court has made an initial determination that it has jurisdiction over the insurance dispute, but Iowa Mutual has not yet obtained appellate review, as provided by the Tribal Code, ch. 1, § 5. Until appellate review is complete, the Blackfeet Tribal Courts have not had a full opportunity to evaluate" }, { "docid": "84708", "title": "", "text": "Means is sufficiently “detained” by the fact that, as conditions of his release on bail, he is forbidden from leaving the reservation and from contacting children. Currently, Appellees’ principal contention is that the district court should not have entertained Means’ petition because he has not yet been tried. They acknowledge that pre-trial habeas petitions may be reviewed, but only if “special circumstances” are shown. Carden v. Montana, 626 F.2d 82, 83 (9th Cir.1980). They claim that the district court should have required Means to show that such special circumstances existed before allowing him to proceed with his petition. While this particular issue does not appear to have been raised before in the context of the habeas remedy peculiar to the Indian Civil Rights Act, 25 U.S.C. § 1303, the general reluctance to interfere with on-going state criminal trials can generally be said to extend to tribal courts. However, this is usually examined in the context of the requirement that tribal remedies be exhausted before the federal courts will get involved. The “principles of federalism and comity” that preclude most pre-trial grants of habeas relief in state cases are reflected here in the exhaustion requirement. See Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 15 & 16 n. 8, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (holding, in the context of a civil case, that “considerations of comity direct that tribal remedies be exhausted before the question is addressed by the District Court” and that “[e]xhaustion is required as a matter of comity, not as a jurisdictional prerequisite”). Duro itself was a pre-trial habeas case, and even with all the discussion over whether the writ should have been granted, it does not appear to have been disputed that the district court’s review of the petition was proper. Our cases make clear that pre-trial relief was appropriate in these narrow circumstances. “[W]hen a tribal court attempts to exercise criminal jurisdiction over a person not a member of a tribe, no requirement of exhaustion need be enforced.” Selam v. Warm Springs Tribal Correctional Facility, 134 F.3d 948, 954 (9th Cir.1998) (quoting Wetsit" }, { "docid": "3978912", "title": "", "text": "do with” Stock West, “a stranger to the agreements between [Taylor] and the Tribe[s].” Id. We conclude that a non-Indian’s breach of an independent duty to another non-Indian, occurring off of the reservation, falls without the nebulous confines of a “reservation affair” and does not arise on the reservation. In such circumstances, we fail to see the necessity for dismissal of the federal court action. Instead, we reaffirm the principle, stated in Wellman, that in non-Indian matters, “non-Indians can go to district court directly.” 815 F.2d at 579. The district court based its decision to defer not on a reasoned exercise of its discretion, but on its misimpression that exhaustion of tribal remedies was mandatory in the face of possible tribal court jurisdiction. See Stock West II, 737 F.Supp. at 605 (“principles of comity require me to decline to exercise jurisdiction”) (emphasis added). While we are not simply to substitute our judgment for that of the lower court when reviewing for abuse of discretion, United States v. BNS Inc., 858 F.2d 456, 464 (9th Cir.1988), here the district court has misinterpreted the applicable law. Our review of the record does not support dismissal. There is no pending tribal court proceeding, the principal issues presented are of state or federal law, and the tribal court possesses no special expertise in the subject matter. See Burlington N. R.R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901 n. 2 (9th Cir.1991). Comity does not suffice as a basis for affirmance under these facts. C In reaching the conclusion that deference to the tribal courts was not required in this instance, we are not placing the federal courts “in direct competition with the tribal courts,” LaPlante, 480 U.S. at 16, 107 S.Ct. at 976. The tribal courts have superior expertise in interpreting their own tribal law. See National Farmers Union, 471 U.S. at 855-56, 105 S.Ct. at 2453-54; Burlington Northern v. Crow Tribe Council, 940 F.2d at 1246-47. In addressing the question before this court, however, we have not resorted to an examination of tribal law; for example, we have not considered the possible" }, { "docid": "13449258", "title": "", "text": "(8th Cir.1991); Oglesby v. U.S. Dept. of Army, 920 F.2d 57 (D.C.Cir.1990). One of the main purposes of the exhaustion requirement, repeated in several administrative law cases, is the principle of judicial economy. (“The exhaustion requirement stresses both respect for agency prerogatives and principals of judicial economy by seeking to prevent ‘premature interruption of the administrative process.’ ”) (emphasis added) New York State Ophthalmological Soc. v. Bowen, 854 F.2d 1379, 1387 (D.C.Cir.1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2448, 104 L.Ed.2d 1003 (1989), quoting McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1968). Additionally, the Supreme Court has utilized reasoning similar to that of National Farmers Union in other administrative law cases by stating that “[ajdministrative remedies that are inadequate need not be exhausted.” Coit Independence Joint Venture v. Federal Sav. & Loan Ins. Corp., 489 U.S. 561, 587, 109 S.Ct. 1361, 1375, 103 L.Ed.2d 602 (1989). See also Honig v. Doe, 484 U.S. 305, 326-27, 108 S.Ct. 592, 605-06, 98 L.Ed.2d 686 (1988). Applying the exhaustion doctrine under the reasoning of the district court (“The foundation was firm”) might induce sufficient uncertainty to cause a lay person to delay filing suit until a statute of limitation runs or a witness becomes unavailable. The law should provide sufficient certainty for litigants to effect rational decisions. As much as tribal exhaustion might have been desirable in the initial stages of this suit, to require a plaintiff to turn back the clock and exhaust previously unavailable remedies is contrary to judicial efficiency and prejudicial to an individual who brings suit in a forum available for immediate resolution of his claim. The Supreme Court also has recognized that the doctrine of exhaustion of tribal remedies is analogous to dismissals under the doctrine of abstention. Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 16 n. 8, 107 S.Ct. 971, 976 n. 8, 94 L.Ed.2d 10 (1987). Under abstention analysis, a district court must determine whether “the opportunity to raise and have timely decided” before a state tribunal was available to the plaintiff when he brought" }, { "docid": "9443016", "title": "", "text": "This is evident in the fact that the Court has held that “consensual relationships” may create jurisdiction, a holding inconsistent with federal subject matter jurisdiction, though perfectly consistent with principles of personal jurisdiction. See Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1228-29 (9th Cir.1989) (stating that “even if the consent of Stock West was adequate to confer personal jurisdiction onto the tribal court, the question of whether the tribal court has subject matter jurisdiction over the case would still not be resolved”; affirming dismissal of federal suit on grounds of comity). We know of no correlative doctrine or practice in the federal system that would allow a party who would not otherwise be subject to a federal court’s subject matter jurisdiction to enter into a consensual relationship — for example, through contract or stipulation — that would confer subject matter jurisdiction on a federal court. The play in the margins of tribal civil jurisdiction is further evident in the Court’s decisions in Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987), and National Farmers Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). In both of those cases, a member of the tribe sued a nonmember in tribal court. Although the Court has since observed that it has “never held that a tribal court had jurisdiction over a nonmember defendant,” Hicks, 533 U.S. at 358 n. 2, 121 S.Ct. 2304, in both cases the Court declined to hold that the tribal courts lacked jurisdiction over nonmember defendants. Instead the Court— for reasons of “prudential” exhaustion— remanded the cases to determine whether “the federal action should be stayed pending further Tribal Court proceedings or dismissed.” Iowa Mut., 480 U.S. at 20 n. 14, 107 S.Ct. 971. In those cases, “[r]espect for tribal self-government made it appropriate ‘to give the tribal court a “full opportunity to determine its own jurisdiction.” ’ ” Strate, 520 U.S. at 451, 117 S.Ct. 1404 (quoting Iowa Mut., 480 U.S. at 16, 107 S.Ct. 971" }, { "docid": "2025288", "title": "", "text": "that the issue of tribal court jurisdiction, although a federal question, is a matter for the tribal court itself to determine in the first instance. 471 U.S. at 857, 105 S.Ct. at 2454. The Court determined that, in furtherance of the congressional commitment to a policy favoring “tribal self-government and self-determination,” the courts should follow a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to “evaluate the factual and legal bases for the challenge.” Id. Deferral of jurisdictional issues to the tribal court is one aspect of the doctrine of exhaustion of tribal remedies. In the civil context, courts have widely held that before resorting to state or federal courts to resolve disputes relating to Indian affairs or arising on reservations, generally, a plaintiff must exhaust the remedies available through the tribal court system. See, generally, Bowen, 880 F.Supp. at 123 (‘“The requirement of exhaustion of tribal remedies is not discretionary; it is mandatory.’” (citation omitted)). At the very least, this general rule recognizes that the tribes are “in the best position to develop the necessary factual record for disposition on the merits,” and to “provide the benefits of tribal explanations and expertise to the court in the event of further judicial review.” Middlemist v. Sec. of U.S. Dept. of Interior, 824 F.Supp. 940, 945 (D.Mont.1993), aff'd, 19 F.3d 1318 (1994), citing, Burlington Northern Railroad Co. v. Crow Tribal, 940 F.2d 1239, 1246 (9th Cir.1991). “At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts.” Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 17, 107 S.Ct. 971, 977, 94 L.Ed.2d 10 (1987). “Until appellate review is complete, [a tribe has] not had a full opportunity to evaluate the claim and federal courts should not intervene.” Id. In the instant case, the tribal court was established before the action precipitating the dispute, although shortly before. The constitution provides for a lower level court, an appellate court, and a peacemakers court. This court can find no statute or decision that" }, { "docid": "11033893", "title": "", "text": "or enforcement of the tribal court judgment. The injunction was intended to “maintain[ ] the status quo and preserv[e] the court’s jurisdiction should future federal litigation occur in this matter.” The district court ordered the Railroad to post with the federal court a $5 million bond as security for the injunction, retained jurisdiction and stayed all further proceedings pending exhaustion of tribal remedies. The judgment creditors appeal the preliminary injunction. ANALYSIS: 1. Standard of Review We review de novo whether the court was required to abstain from granting the injunction because Indian tribal court remedies had not been exhausted. Burlington Northern R.R. v. Crow Tribal Council, 940 F.2d 1239, 1244-45 (9th Cir.1991) (“[T]he requirement of exhaustion of tribal remedies is not discretionary; it is mandatory.”); Stock West Corp. v. Taylor, 964 F.2d 912, 920 (9th Cir.1992) (en banc) (conducting independent review of the applicable law and affirming abstention pending exhaustion of tribal court remedies). 2. Exhaustion of Tribal Court Remedies In matters over which tribal courts assert concurrent jurisdiction, exhaustion of tribal court remedies is required as a matter of comity. National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 857, 105 S.Ct. 2447, 2454, 85 L.Ed.2d 818 (1985). “At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts.” Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 17, 107 S.Ct. 971, 977, 94 L.Ed.2d 10 (1987). The Railroad argues that the tribal courts had an adequate opportunity to decide whether or not it must post a supersedeas bond. Its motion for a stay from posting a bond in tribal court was considered by both the tribal court and the tribal appellate court. It concedes, however, that there was no final ruling on the form and amount of security that would suffice to stay the judgment. The district court acknowledged that tribal remedies had not been exhausted, but nevertheless exercised its injunctive power to maintain the status quo and to preserve its jurisdiction. As with any other exercise of federal jurisdiction, injunctive relief" }, { "docid": "6101435", "title": "", "text": "to be dismissed on the alternative ground of tribal sovereign immunity. See id. at 15-17. Following the entry of final judgment dismissing the complaint, Garcia filed this appeal. DISCUSSION We consider tribal exhaustion first; sovereign immunity second. I The doctrine of federal court abstention now known as the “tribal exhaustion rule” was announced in National Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). In general terms, the doctrine requires that federal courts abstain from hearing certain claims relating to Indian tribes until the plaintiff has first exhausted those claims in a tribal court. The defendants in this case argue, and the district court agreed, that the tribal exhaustion rule mandates dismissal of Garcia’s claims against both the AHA and Ransom. We review the scope of the tribal exhaustion rule de novo. Bowen v. Doyle, 230 F.3d 525, 530 (2d Cir.2000). A. Subject Matter Jurisdiction As a threshold matter, the district court erred by treating abstention on this ground as a matter of subject matter jurisdiction. See Garcia, 105 F.Supp.2d at 21. Exhaustion in appropriate circumstances “is required as a matter of comity, not as a jurisdictional prerequisite.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 n. 8, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987). Garcia alleged federal question jurisdiction over her federal law claims, see 28 U.S.C. § 1331, and supplemental jurisdiction over her state-law claims, see id. § 1367(a). (Garcia’s assertion of diversity jurisdiction is dubious. ) Because the tribal exhaustion rule does not impair jurisdiction, and instead is “analogous to principles of abstention articulated in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976),” LaPlante, 480 U.S. at 16 n. 8, 107 S.Ct. 971, the doctrine must be interpreted narrowly in light of the “virtually unflagging obligation of federal courts to exercise the jurisdiction given them.” Colorado River, 424 U.S. at 817, 96 S.Ct. 1236. B. The Reach of the Doctrine This Court and the Supreme Court have required abstention under the tribal exhaustion rule on just three" }, { "docid": "3978900", "title": "", "text": "S.Ct. 971, 975-76, 94 L.Ed.2d 10 (1987). While tribal courts are not permitted to exert criminal jurisdiction over non-Indians, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), or even non-member Indians, Duro v. Reina, — U.S.-, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990), they enjoy fairly broad powers in the civil context. See id. 110 S.Ct. at 2061. “Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty,” and thus “[c]ivil jurisdiction over such activities presumptively lies in the tribal courts.” La-Plante, 480 U.S. at 18, 107 S.Ct. at 977 (citations omitted); Wellman v. Chevron U.S.A., Inc., 815 F.2d 577, 578 (9th Cir. 1987); see also FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1314-15 (9th Cir. 1990) (describing and applying test for determining when tribal court civil jurisdiction is appropriate over non-Indians engaging in on-reservation activities), cert. denied, — U.S. -, 111 S.Ct. 1404, 113 L.Ed.2d 459 (1991); Sanders v. Robinson, 864 F.2d 630, 632-33 (9th Cir.1988) (considering whether tribal court may adjudicate divorce between a member and a non-Indian), cert. denied, 490 U.S. 1110, 109 S.Ct. 3165, 104 L.Ed.2d 1028 (1989). Because of the significance of the role of tribal courts in preserving sover eignty, the Supreme Court and this court have been protective of tribal court jurisdiction. It is often stated that tribal courts should consider the issue of their own jurisdiction first, with federal court actions to be dismissed or stayed pending exhaustion of tribal court remedies. E.g., National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856-57, 105 S.Ct. 2447, 2453-54, 85 L.Ed.2d 818 (1985). This exhaustion requirement, then, serves to ensure that the tribal court may protect its own jurisdiction, thereby promoting the tribe’s “authority over reservation affairs” and preventing infringement upon tribal law-making authority. See LaPlante, 480 U.S. at 16, 107 S.Ct. at 976. Since the Supreme Court decided National Farmers Union and LaPlante, the reported cases have been virtually unanimous in expressing the exhaustion requirement in mandatory terms. See, e.g., Burlington N. R.R. Co. v." }, { "docid": "7797253", "title": "", "text": "the qualified immunity available to state officials in tribal court, Nevada instead invites this court to define the applicable test. We decline to do so. The Supreme Court in Strate reaffirmed its earlier decisions requiring, as a matter of comity and with very narrow exceptions, the exhaustion of tribal remedies before the federal courts rule on the jurisdiction of the tribal courts. See Strate, 520 U.S. 438, at 448-454, 117 S.Ct. 1404, 137 L.Ed.2d 661 (discussing Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987), and National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985)); see also Burlington Northern R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1245 (9th Cir.1991) (emphasizing the exhaustion requirement). The district court correctly applied this exhaustion requirement to the issue of qualified immunity. See, e.g., Stock West Corp. v. Taylor, 964 F.2d 912, 920 (9th Cir.1992) (en banc) (holding that the district court abused its discretion in addressing a qualified immunity defense on the merits, and explaining that “[bjecause a determination of this issue will require a careful study of the application of tribal laws, and tribal court decisions, the district court should have stayed its hand until after the Colville Tribal Courts have the opportunity to resolve the question”). As a preliminary matter, we note that Nevada makes the same mistake with regard to qualified immunity that it made with sovereign immunity, by contending that it is an issue that impacts the subject matter jurisdiction of the tribal courts. The law is clear that qualified immunity, rather than serving as a jurisdictional bar, “is an affirmative defense that must be pleaded by a defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 n. 4, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) (noting qualified immunity is an affirmative defense that is “wholly distinct” from issues of jurisdiction). We reject Nevada’s contention to the contrary.. Alternatively, Nevada argues" }, { "docid": "22817023", "title": "", "text": "discretionary exercise of a court’s equity powers, it is reviewed only for an abuse of discretion. Turf Paradise, Inc. v. Arizona Downs, 670 F.2d 813 (9th Cir.), cert. denied, 456 U.S. 1011, 102 S.Ct. 2308, 73 L.Ed.2d 1308 (1982); see also Coats v. Woods, 819 F.2d 236, 237 (9th Cir.), cert. denied, - U.S. -, 108 S.Ct. 46, 98 L.Ed.2d 11 (1987). The abuse of discretion standard likewise should apply to the district court’s dismissal in favor of the tribal court proceedings in the instant case. The Iowa Mutual case, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987), is directly relevant to this issue. In Iowa Mutual, LaPlante, a Blackfeet Indian, sued Iowa Mutual, an Iowa corporation, in Blackfeet Tribal Court for damages resulting from a truck accident on the reservation. The Blackfeet reservation is located within the borders of Montana. The tribal court ruled that it had jurisdiction to hear the case. Iowa Mutual, asserting diversity jurisdiction, then brought an action in federal court against LaPlante seeking declaratory relief. The district court dismissed the case for lack of subject matter jurisdiction and we affirmed. 774 F.2d 1174 (9th Cir.1985). The Supreme Court reversed, ruling that the district court should not have dismissed but should have either (a) retained jurisdiction and stayed any action pending the tribal courts’ resolution of the jurisdiction question, or (b) prudentially dismissed the case in favor of the tribal court proceedings. Iowa Mutual, 480 U.S. at 19-20, 107 S.Ct. at 978-79. The Court, reiterating the holding of National Farmers, 471 U.S. at 856, 105 S.Ct. at 2454, that exhaustion of tribal remedies is a prerequisite to a federal action, held that since Iowa Mutual had not fully exhausted tribal remedies by appealing to the Blackfeet Tribal Appeals Court, the federal action should not proceed. Iowa Mutual, 480 U.S. at 19, 107 S.Ct. at 978. Also, in Wellman v. Chevron U.S.A., Inc., 815 F.2d 577 (9th Cir.1987), a Blackfeet Indian contractor brought a diversity action for breach of contract against a non-Indian corporation involving work that was to have been performed on tribal lands." } ]

[ { "docid": "12954372", "title": "", "text": "reinstatement matured when he received his honorable discharge. We agreed with that ruling in Van Doren v. Van Doren Laundry Service Inc., 3 Cir., 162 F.2d 1007. For the reasons stated the judgment of the District Court will be affirmed. Circular No. 39 provided for the discharge of an enlisted man 38 years of age and over who had, among other things, (1) attained his 38th birthday on or before February 28,1943. (2) enlisted or was inducted into the Army on or before February 28, 1943. (3) (a) prior to May 1, 1943, voluntarily submitted to his immediate commanding officer written request for discharge. * * * (4) presented evidence in the form of a letter or statement from a prospective employer, the United States Employment Service, farm agent, or other responsible person to the effect that the individual concerned will be employed in essential industry, including agriculture, if he is discharged from the Army. A bridge deckman acts as an assistant to a bridge tender. His duties are connected with the opening and closing of railroad drawbridges. The period was extended to 90 days by the Act of Dec. 8,1944, 58 Stat. 798. Section 8(b) provides, in part: “In the case of any such person who, in order to perform such training and serv- \" ice, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within forty days after he is relieved from such training and service— * * (emphasis supplied) Section 8(a) provides in part: “(a) Any person inducted into the land or naval forces under this Act for training and service, who, in the judgment of those in authority over him, satisfactorily completes Ms period of training and service under section 3(b) shall he entitled to a certificate to that effect upon the completion of such period of training and service * *" } ]

[ { "docid": "19362439", "title": "", "text": "Board, at\"the request of the plaintiff, classified hifn as 1-A. Thereupon the Railway Company appealed and the order of deferment was continued, and on August 9, 1945, the plaintiff was deferred to September 26, 1945. During his deferment he was prohibited from voluntary enlistment by Executive Order of the President No. 9279, par. 4, 50 U.S.C.A.Appendix, § 310 note, and he was ineligible, for induction under the statute, 50 U.S.C.A.Appendix § 305 (k), so long as he remained-in an endeavor.essential to the war effort. On August 9, 1945, the plaintiff resigned his position in order, as stated m his letter of resignation, that he might establish himself in a non-essential status, and might be drafted into the military service. On August 19, 1945, he wrote his local Draft Board requesting that he be made available for services in the armed forces, and on August 23, 1945, he volunteered to be inducted. The Local Board took no action until September 26, 1945, the date of the expiration of his deferment, when it ordered the appellant to report for induction. On October 8, 1945, he was inducted. The plaintiff received an honorable discharge and a certificate of satisfactory completion of training and service on April 1, 1946; and on April 21, 1946, applied for reemployment in his former position. His application was refused but he was offered reemployment as a new man without seniority which he declined until November 5, 1946, when he returned to work without benefit of his previously acquired seniority. He sues to obtain restoration to his former position and to recover the pay lost as the result of the Railway Company’s failure to comply with the terms of the statute. With respect to a person who has completed his services in the land or naval forces, and has been given a certificate of discharge, Section 308 of the statute provides : “(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1)" }, { "docid": "8557630", "title": "", "text": "in the merchant marine, * * * toward such within-grade salary advancements. As used in this paragraph the term ‘service in the merchant marine’ shall have the same meaning as when used in sections 1471-1475 of Appendix to Title 50.” Thus under this section the salary to hich plaintiff was entitled on April 1, 47, must have reflected due credit, as of that date, for his Merchant Marine service for the purpose of within-grade salary advancements. Plaintiff’s recovery here must be measured accordingly. We conclude that although. plaintiff did not hold a permanent position in the Government at the time of his entry into the Merchant Marine, and was not, therefore, entitled to statutory reemployment rights, he was nevertheless entitled to fixed regulatory rights of reemployment in his former position; that these rights to reemployment were violated by the State Department; and that as a result of the violation plaintiff is entitled to recover the salary of his position for a period of one year from April 1, 1947, including any within-grade salary advancements to which he was entitled as of that date less sums received from other employment. Accordingly, defendant’s motion for summary judgment is denied, and plaintiff’s motion for summary judgment is granted. The entry of judgment will be suspended pending the filing of a stipulation by the parties showing the exact amount of the judgment to be awarded plaintiff, computed in accordance with the opinion of the court. It is so ordered. JONES, Chief Judge, and MADDEN, WHITAKER and LITTLETON, Judges, concur. . On March 23, 1945, by Executive Order No. 9132, 3 C.F.R., 1945 Supp., p. 57, U.S.Code Cong.Service 1945, p. 1226, the name of the OCIAA was changed to Office of Inter-American Affairs. By Executive Order No. 9608 of August 31, 1945. 3 O.F.R., 1945 Supp., p. 109, 50 U.S.C.A.Appendix, § 601 note, the functions, personnel, records, and property of the Office of Inter-American Affairs were transferred to the Interim International Information Service in the Department of State. . The War Shipping Administration was terminated as of September 1, 1946, and all functions, powers, etc." }, { "docid": "8557610", "title": "", "text": "again contacted the Division of Departmental Personnel with respect to his position and was advised that if he were restored to duty he would be displaced almost immediately because of the State Department’s program of hiring displaced career employees with competitive status who had been separated from war agencies by reductions in force. Upon receipt of this information, plaintiff requested that his reemployment rights be held in abeyance indefinitely. Plaintiff was never reemployed by the State Department, and finally, on April 11, 1950, obtained a separation for his “war transfer leave without pay” status in order to obtain a refund of his retirement deductions. Sections 1471-1475 of Title 50 United States Code Annotated Appendix, which create the reemployment rights of Merchant Marine personnel serving in World War II, provide in material part as follows: “§ 1471. (a) When used in this Act (sections 1471-1475 of this Appendix) the term ‘service in the merchant marine’ means service as an officer or member of the crew on or in connection with a vessel documented under the laws of the United States * * *, as an enrollee in the United States Maritime Service on active duty, * *. “(b) Any person entering service in the merchant marine after May 1, 1940, and before the termination of the unlimited national emergency declared by the President on May 27, 1941, who, in accordance with rules and regulations prescribed by the Administrator, War Shipping Administration, completes a period of substantially continuous service in the merchant mai ne, shall be entitled to a certificate to that effect from the Administrator upon completion of such period, * *. “§ 1472. (a) In the case of any such person who, in order to perform service in the merchant marine, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within ninety days after completion of such service, * * * “(A) if such position was in the employ" }, { "docid": "8557623", "title": "", "text": "11, 1946, by the United States Maritime Commission, as successor to the War Shipping Administration, and in effect at the time plaintiff attempted to assert his reemployment rights, reveals nothing which is inconsistent with or in any way related to the regulations of the Civil Service Commission set forth above. 11 F.R. 10770, 46 C.F.R., 1946-Supp., § 304.75-.80. Rather, the scope of these regulations is restricted primarily to definitions of the terms “service in the merchant marine” and “substantially continuous service” as used in the Merchant Marine Reemployment Act. Because o.f this lack of any reference whatsoever .in the Maritime Commission’s regulations to the reemployment rights of Merchant Marine personnel who held war service indefinite appointments, and because of the Civil Service Commission’s determination that its regulations could be applied to Merchant Marine personnel in such a situation, we hold that plaintiff was entitled under § 27.17(b) and (c) of the Civil Service Regulations to a regulatory right of reemployment in his temporary position as Information Publicist with the State Department. Plaintiff satisfied all of the requirements of the regulations as he possessed a certificate of substantially continuous service in the Merchant Marine, was still qualified to perform the duties of his position, made application for reemployment well within the prescribed period, and sought return to a temporary position not limited to one year or less. The State Department, as successor to the OCIAA, to which plaintiff properly directed his reemployment application under § 27.17(c) of the Civil Service regulations, supra, was in our opinion guilty of a flagrant disregard of plaintiff's reemployment rights when it failed to reinstate him, especially when it is borne in mind that both the Civil Service Commission and the OCIAA had recognized at the time of plaintiff’s entry into the Merchant Marine that he possessed “certain reemployment rights.” Moreover, the statement given to plaintiff by the State Department on October 15, 1947, that if he were reemployed, he would immediately be subject to displacement, was contrary to the provisions of 50 U.S.C.A.Appendix, § 1472 (d) which prohibited the removal for a period of one" }, { "docid": "8557617", "title": "", "text": "Merchant Marine because of the similarity in the terms and purposes of the two acts. In fact, the legislative history of the Merchant Marine Reemployment Act, S.Rep. 262. 78th Cong. 1st Sess., points out that the “bill \"follows substantially provisions of law applicable to persons entering the armed forces of the United States.” Cf. H.Rept. 106, 78th Cong., 1st Sess. Therefore, we conclude that plaintiff, as a war service indefinite appointee, did not have a statutory right under the Merchant Marine Reemployment Act to reemployment in the State Department. In pursuance of the recommendation by the Attorney General that war service indefinite employees should be entitled to reemployment rights “in proper cases,” the Civil Service Commission issued rules and regulations which closely followed the terms of the Selective Training and Service Act, supra, and which provided for what were designated as regulatory reemployment rights. The regulations in effect at the time plaintiff terminated his active duty in the Merchant Marine on March 31, 1947, were issued by the Civil Service Commission on February 6, 1946, effective 30 days from February 4, 1946, 5 C.F.R., 1946 Supp., § 27.17, and provided as follows: “§ 27.17 Restoration after return from military service and service in the Merchant Marine — (a) Persons entitled to restoration by laiv — (1) After military service. Any civilian employee of the Executive branch of the Government covered by the Selective Training and Service Act or other statutes providing for reemployment after military service who has left or leaves his position (other than a temporary position) in order to perform active military or naval service for the United States and (i) is honorably separated from such service, (ii) is still qualified to perform the duties of such position, and (iii) makes application for reemployment within ninety days after he is relieved from such active duty or service * * * shall be restored within thirty days to the position he left or, if that position does not exist, to a position of like seniority, status, and pay: Provided, That failure of the agency to act within the said" }, { "docid": "8557628", "title": "", "text": "General, supra, and on the basis of a memorandum issued by the Civil Service Commission and set forth in the Federal Personnel Manual, ch. R6, p. 801, that war service employees of the Government were temporary employees and did not have a statutory right of reemployment. Our conclusion with respect to the statutory reemployment rights of the plaintiff in the instant action is the same. However, the District Court did not take into consideration, as we have done, the reasonable determination by the Civil Service Commission, upon which rests the responsibility for the administration of the personnel program of the Executive Branch of the Government, to extend reemployment rights to war service employees by means of well-defined regulations. To the extent that this court and the District Court consider the same matter, viz., the right to reemployment under statute, the conclusions reached are identical. In determining the amount of salary which plaintiff was entitled to receive during the year that his reemployment rights were denied, the provisions of § 402(b) of the Federal Employees Pay Act of June 30, 1945, ch. 212, title IV, 59 Stat. 299, 5 U.S.C. § 667(b)(4) shall be given their full force and effect. This section provides as follows: “That any employee, (A) who, while serving under permanent, war service, temporary, or any other type of appointment, has left his position to enter the armed forces or the merchant marine, * * *, (B) who has been separated under honorable conditions from active duty in the armed forces, or has received a certificate of satisfactory service in the merchant marine, * * *, and (C) who, under regulations of the Civil Service Commission or the provisions of any law providing for restoration or reemployment, or under any other administrative procedure with respect to employees not subject to civil service rules and regulations, is restored, reemployed, or reinstated in any position subject to this section, shall upon his return to duty be entitled to within-grade salary advancements without regard to paragraphs (2) and (3) of this subsection, and to credit such service in the armed forces," }, { "docid": "8557622", "title": "", "text": "aimed forces. * * ” . In promulgating these regulations,' the Civil Service Commission was not unaware of the provision in 50 U.S.C.A.Appendix, § 1475 that the War Shipping Administrator, or his successor, should promulgate the rules and regulations necessary to carry out the provisions of the Merchant Marine Reemployment Act. The Civil Service Commission, in the explanatory text which accompanied these regulations, expressly referred to § 1475 and stated that (1) prior approval of the Commission was not required for restoration of Merchant Marine personnel, (2) the reemployment rights of Merchant Marine personnel were not nec essarily covered in these provisions, but (3) the Commission could include persons who had served in the Merchant Marine among those entitled to the benefits and policies prescribed by it for members of the Armed Forces where such procedures and policies were distinct from those established under the Merchant Marine Reemployment Act by the War Shipping Administrator. Federal Personnel Manual, ch. R6, p. 1, July 8, 1946. An examination of the revised rules and regulations promulgated on September 11, 1946, by the United States Maritime Commission, as successor to the War Shipping Administration, and in effect at the time plaintiff attempted to assert his reemployment rights, reveals nothing which is inconsistent with or in any way related to the regulations of the Civil Service Commission set forth above. 11 F.R. 10770, 46 C.F.R., 1946-Supp., § 304.75-.80. Rather, the scope of these regulations is restricted primarily to definitions of the terms “service in the merchant marine” and “substantially continuous service” as used in the Merchant Marine Reemployment Act. Because o.f this lack of any reference whatsoever .in the Maritime Commission’s regulations to the reemployment rights of Merchant Marine personnel who held war service indefinite appointments, and because of the Civil Service Commission’s determination that its regulations could be applied to Merchant Marine personnel in such a situation, we hold that plaintiff was entitled under § 27.17(b) and (c) of the Civil Service Regulations to a regulatory right of reemployment in his temporary position as Information Publicist with the State Department. Plaintiff satisfied all of" }, { "docid": "8557609", "title": "", "text": "to which you can be appointed. It will, therefore, be necessary to resort to a reduction in force procedure to determine if there is an employee at your competitive level in the Department who has lower reten tion preference under Civil Service rules and regulations.” On March 31, 1947, plaintiff was released from active duty with the Maritime.Service, and was given a certificate of “substantially continuous service.” Plaintiff at once contacted the Division of Departmental Personnel of the State Department which informed him at this time that he would be reemployed within 30 days. However, plaintiff was not completely satisfied with this information, and on April 14, 1947, appealed directly to the Secretary of State requesting recognition of his reemployment rights. This appeal went unheeded, and plaintiff received no further information until September 17, 1947, when he was notified that the State Department wanted him to return as soon as possible. Plaintiff made the necessary preparations and underwent a physical examination, but his reemployment was not forthcoming as anticipated. On October 15, 1947, plaintiff once again contacted the Division of Departmental Personnel with respect to his position and was advised that if he were restored to duty he would be displaced almost immediately because of the State Department’s program of hiring displaced career employees with competitive status who had been separated from war agencies by reductions in force. Upon receipt of this information, plaintiff requested that his reemployment rights be held in abeyance indefinitely. Plaintiff was never reemployed by the State Department, and finally, on April 11, 1950, obtained a separation for his “war transfer leave without pay” status in order to obtain a refund of his retirement deductions. Sections 1471-1475 of Title 50 United States Code Annotated Appendix, which create the reemployment rights of Merchant Marine personnel serving in World War II, provide in material part as follows: “§ 1471. (a) When used in this Act (sections 1471-1475 of this Appendix) the term ‘service in the merchant marine’ means service as an officer or member of the crew on or in connection with a vessel documented under the laws" }, { "docid": "8557611", "title": "", "text": "of the United States * * *, as an enrollee in the United States Maritime Service on active duty, * *. “(b) Any person entering service in the merchant marine after May 1, 1940, and before the termination of the unlimited national emergency declared by the President on May 27, 1941, who, in accordance with rules and regulations prescribed by the Administrator, War Shipping Administration, completes a period of substantially continuous service in the merchant mai ne, shall be entitled to a certificate to that effect from the Administrator upon completion of such period, * *. “§ 1472. (a) In the case of any such person who, in order to perform service in the merchant marine, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within ninety days after completion of such service, * * * “(A) if such position was in the employ of the United States Government, * * *, such persons shall be restored to such position or to a position of like seniority, status, and pay, without regard to whether such position shall have been covered into the classified civil service during the period of his military, naval or merchant marine service; Í¡c sjí íJí jj: “(d) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (a) of this section shall be considered as having been on furlough or leave of absence during his period of service, shall be so restored without loss of seniority, * * * and shall not be discharged from such position without reasonable cause within one year after such restoration. * * * * * * “§ 1475. The Administrator, War Shipping Administration, may make such rules and regulations as he deems necessary or appropriate to carry out the provisions of this Act.2” Plaintiff contends that inasmuch as he complied with the terms of the above-quoted statute in (1)" }, { "docid": "8557606", "title": "", "text": "OCIAA, agreed to accept the post. Thereafter, on January 3, 1945, plaintiff was commissioned a Lieutenant Commander, United States Maritime Service, with a salary of $3,000 per annum plus allowances. Shortly after his entry into the Maritime Service, plaintiff received a letter from the United States Civil Service Commission, dated December 27, 1944, authorizing his transfer from the OCIAA to the War Shipping Administration without reemployment rights. As this condition was contrary to the earlier assurances given to him, plaintiff protested immediately to the Civil Service Commission against its inclusion in the transfer notice. In response to this protest, on January 11, 1945, the Executive Director of the Civil Service Commission advised plaintiff that the earlier notice was being amended, and that his transfer would carry with it “certain reemployment rights” under the provisions of the Merchant Marine Reemployment Act. Confirmation of this action by the OCIAA was received by plaintiff on January 16, 1945. For the next two years plaintiff devoted his efforts to editing the official publication of the Maritime Service, and received, in recognition of his fine work, a promotion to the rank of Commander. Due to a reduction in appropriations, plaintiff was advised by the Commandant of the Maritime Service on January 20, 1947, that his position as editor of Mast Magazine would have to be eliminated, and that effective February 28, 1947, he would be relieved from active duty. Upon receipt of this notice, plaintiff, on January 23, 1947, requested the Maritime Commission to arrange for his return to his former position in the State Department, and on January 24, 1947, applied to the Civil Service Commission for reemployment under the provisions of 50 U.S.C.A.Appendix, §§ 1471— 1475, supra, in his former position effective March 1, 1947. Inasmuch as plaintiff’s return to the State Department could not be effected immediately, the Commandant of the Maritime Service, on February 5, 1947, extended plaintiff’s period of active service for one month, i. e-, through March 31, 1947, instead of February 28, 1947. During the first part of February 1947 plaintiff was told by the State Department that" }, { "docid": "8557604", "title": "", "text": "HOWELL, Judge. This proceeding is brought by a former employee of the Office of the Coordinator of Inter-American Affairs, now part of the State Department, to recover back salary totalling $24,276.16 allegedly due him as the result of a purported denial of his right, under the provisions of the Act of June 23, 1943, ch. 142, 57 Stat. 162, as amended, 50 U.S.C.A.Appendix, §§ 1471-1475, sometimes referred to herein as the Merchant Marine Reemployment Act, to be reemployed in the position held by him at the time of his acceptance of a commission as an officer in the United States Merchant Marine during World War II. As the material facts are not in issue, both parties seek summary judgment on the question of whether or not plaintiff’s position, which he held under a war service indefinite appointment, was a permanent position entitling him to the benefits of the statute. Plaintiff is a writer with extensive experience in the newspaper and magazine field, having formerly been editor of Harper’s Weekly, The San Francisco News,.-and other well-known publications. Because of the occurrence of cataracts on both eyes, plaintiff was forced to retire temporarily from his profession during the period from 1936 to 1940. However, following the restoration of his sight, plaintiff obtained, on April 30, 1942, a war service indefinite (Regulation V) appointment as a Business Specialist (Information Publicist), CAF-11, $3,800 per annum, in the Press Division of the Office of the Coordinater of Inter-American Affairs, hereinafter referred to as the OCIAA. Plaintiff remained in this position through 1944, and was given efficiency ratings of “very good” and “excellent” during this period. On June 7, 1944, plaintiff received a promotion to Grade CAF-12 with a salary of-$4,600 per annum. On October 31, 1944, plaintiff was contacted by the training organization of the War Shipping Administration to determine whether he would be interested in a position as editor of the service publication of the United States Maritime Service, known as Mast Magazine. Plaintiff at first was non- receptive to this proposal, but upon being assured that he would have “reemployment rights” with the" }, { "docid": "12585622", "title": "", "text": "SMITH, District Judge. This is an action under Section 1473 of Title 50 U.S.C.A.Appendix (Civilian Reemployment of Members of Merchant Marine.) The petitioner seeks to recover compensation for the loss of wages suffered by reason of his wrongful discharge by the respondent within one year after restoration to his former position. Facts I. The respondent is a corporation engaged in the sale and distribution of beer, and maintains a place of business in Newark, New Jersey. II. The petitioner was first employed by the respondent as a truck driver in May of 1942 and thereafter was continued in the employ of the respondent until September of 1942, when he left his position to enter the Merchant Marine. The petitioner entered the Merchant Marine on September 7, 1942, and his service therein was formally terminated on November 19, 1945, as appears from the certificate issued by the War Shipping Administration. III. The petitioner made application to the respondent for reemployment on August 25, . 1945, after his service in the Merchant Marine had actually ended but before the certificate of continuous service issued. The respondent, without just cause, then disputed the petitioner’s right to reemployment. Thereafter, on November 25, 1945, the respondent recognized the petitioner’s reemployment rights and employed him as a loader; he was restored to his former position as a truck driver on November 26, 1945. IV. The petitioner was continued in the employ of the respondent from November 25, 1945 until March 29, 1946, when he suffered an inguinal hernia while loading his truck. The petitioner was unable to resume work until June 15, 1946, when he again made application to the respondent for reemployment. The respondent then discharged the petitioner without just cause and without informing him of the reason for his discharge at that time. ■ V. The respondent was, and had been since 1942 or prior thereto, under a “closed shop” agreement with Lo.cal Union No. 153 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen arid Helpers. This agreement, which was apparently renewed periodically during the petitioner's absence, contained the following pertinent provision: “Paragraph 2." }, { "docid": "8557631", "title": "", "text": "which he was entitled as of that date less sums received from other employment. Accordingly, defendant’s motion for summary judgment is denied, and plaintiff’s motion for summary judgment is granted. The entry of judgment will be suspended pending the filing of a stipulation by the parties showing the exact amount of the judgment to be awarded plaintiff, computed in accordance with the opinion of the court. It is so ordered. JONES, Chief Judge, and MADDEN, WHITAKER and LITTLETON, Judges, concur. . On March 23, 1945, by Executive Order No. 9132, 3 C.F.R., 1945 Supp., p. 57, U.S.Code Cong.Service 1945, p. 1226, the name of the OCIAA was changed to Office of Inter-American Affairs. By Executive Order No. 9608 of August 31, 1945. 3 O.F.R., 1945 Supp., p. 109, 50 U.S.C.A.Appendix, § 601 note, the functions, personnel, records, and property of the Office of Inter-American Affairs were transferred to the Interim International Information Service in the Department of State. . The War Shipping Administration was terminated as of September 1, 1946, and all functions, powers, etc. were transferred to the United States Maritime Commission for the purpose of liquidation by December 31, 1946, under authority of the Act of July 8, 1946, ch. 543, § 202, 60 Stat! 501, 50 U.S.C.A.Appendix, § 1291 note. . Section 308(b) and (c) of Title 50 U.S. C.App., provides in material part as follows : “(b) In the case of any such person who, in order to perform such training and service [in the land or naval forces], has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3.) makes application for reemployment within ninety days after he is relieved from such training and service * * * “(A) if such position was in the employ of the United States Government, * * * such person shall be restored to such position or to a position of like seniority, status, and pay; Hi H* H« H* Hí “(c) Any person" }, { "docid": "19362440", "title": "", "text": "report for induction. On October 8, 1945, he was inducted. The plaintiff received an honorable discharge and a certificate of satisfactory completion of training and service on April 1, 1946; and on April 21, 1946, applied for reemployment in his former position. His application was refused but he was offered reemployment as a new man without seniority which he declined until November 5, 1946, when he returned to work without benefit of his previously acquired seniority. He sues to obtain restoration to his former position and to recover the pay lost as the result of the Railway Company’s failure to comply with the terms of the statute. With respect to a person who has completed his services in the land or naval forces, and has been given a certificate of discharge, Section 308 of the statute provides : “(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within forty days after he is removed from such training and service— ****** (B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so * * See also Section 357. It will be noted that the facts relating to the plaintiff’s employment and military service bring him within the literal terms of the statute; but the District Judge holds the opinion that in this war Congress provided not only for the active service of men at the front, but also for the use of the 'manpower of the nation in civilian service at home when necessary to the maintenance of the war effort, and that the assignment of a registrant to either kind of service was binding upon" }, { "docid": "8557629", "title": "", "text": "Act of June 30, 1945, ch. 212, title IV, 59 Stat. 299, 5 U.S.C. § 667(b)(4) shall be given their full force and effect. This section provides as follows: “That any employee, (A) who, while serving under permanent, war service, temporary, or any other type of appointment, has left his position to enter the armed forces or the merchant marine, * * *, (B) who has been separated under honorable conditions from active duty in the armed forces, or has received a certificate of satisfactory service in the merchant marine, * * *, and (C) who, under regulations of the Civil Service Commission or the provisions of any law providing for restoration or reemployment, or under any other administrative procedure with respect to employees not subject to civil service rules and regulations, is restored, reemployed, or reinstated in any position subject to this section, shall upon his return to duty be entitled to within-grade salary advancements without regard to paragraphs (2) and (3) of this subsection, and to credit such service in the armed forces, in the merchant marine, * * * toward such within-grade salary advancements. As used in this paragraph the term ‘service in the merchant marine’ shall have the same meaning as when used in sections 1471-1475 of Appendix to Title 50.” Thus under this section the salary to hich plaintiff was entitled on April 1, 47, must have reflected due credit, as of that date, for his Merchant Marine service for the purpose of within-grade salary advancements. Plaintiff’s recovery here must be measured accordingly. We conclude that although. plaintiff did not hold a permanent position in the Government at the time of his entry into the Merchant Marine, and was not, therefore, entitled to statutory reemployment rights, he was nevertheless entitled to fixed regulatory rights of reemployment in his former position; that these rights to reemployment were violated by the State Department; and that as a result of the violation plaintiff is entitled to recover the salary of his position for a period of one year from April 1, 1947, including any within-grade salary advancements to" }, { "docid": "8557624", "title": "", "text": "the requirements of the regulations as he possessed a certificate of substantially continuous service in the Merchant Marine, was still qualified to perform the duties of his position, made application for reemployment well within the prescribed period, and sought return to a temporary position not limited to one year or less. The State Department, as successor to the OCIAA, to which plaintiff properly directed his reemployment application under § 27.17(c) of the Civil Service regulations, supra, was in our opinion guilty of a flagrant disregard of plaintiff's reemployment rights when it failed to reinstate him, especially when it is borne in mind that both the Civil Service Commission and the OCIAA had recognized at the time of plaintiff’s entry into the Merchant Marine that he possessed “certain reemployment rights.” Moreover, the statement given to plaintiff by the State Department on October 15, 1947, that if he were reemployed, he would immediately be subject to displacement, was contrary to the provisions of 50 U.S.C.A.Appendix, § 1472 (d) which prohibited the removal for a period of one year of persons found to possess reemployment rights, except for cause. In view of this disregard of the reemployment rights which plaintiff possessed under the Civil Service Regulations, and in view of the prohibition placed upon the removal for a period of one year of persons entitled to reemployment rights, we think that plaintiff is entitled to recover the • salary of his position for the period of one year from April 1, 1947, the effective date of his requested reemployment, less amounts received by him from other employment during that period. In selecting the date of April 1, 1947, as the time when plaintiff should have been reemployed, we are not unmindful of the statements in the letter of March 17, 1947, from the State Department to plaintiff that “your reemployment rights do not entitle you to a position unless you can cause a separation through a reduction in force of an employee with lower retention preference,” and that it would “be necessary to resort to a reduction in force procedure to determine if" }, { "docid": "8557618", "title": "", "text": "effective 30 days from February 4, 1946, 5 C.F.R., 1946 Supp., § 27.17, and provided as follows: “§ 27.17 Restoration after return from military service and service in the Merchant Marine — (a) Persons entitled to restoration by laiv — (1) After military service. Any civilian employee of the Executive branch of the Government covered by the Selective Training and Service Act or other statutes providing for reemployment after military service who has left or leaves his position (other than a temporary position) in order to perform active military or naval service for the United States and (i) is honorably separated from such service, (ii) is still qualified to perform the duties of such position, and (iii) makes application for reemployment within ninety days after he is relieved from such active duty or service * * * shall be restored within thirty days to the position he left or, if that position does not exist, to a position of like seniority, status, and pay: Provided, That failure of the agency to act within the said period will not affect the employee’s right to restoration: Provided further, That the employee’s tenure with the agency will determine whether he left other them a temporary position and the fact that the last position the returning veteran held through promotion, or reassignment carried, a time limitation will not of itself affect his right to be restored to that position or one of like seniority, status, and pay. “(2) After service in the Merchant Marine. Any civilian employee of the United States Government, * * * who, after May 1, 1940, has left or before the termination of the unlimited national emergency declared by the President on May 27, 1941, leaves his position (other than a temporary position) in order to perform service in the Merchant Marine and (i) receives a certificate of substantially continuous service, (ii) is still qualified to perform the duties of such position, and (iii) makes application for reemployment within forty days after completion of such service, shall be restored to such position or to a position of like seniority, status," }, { "docid": "8557613", "title": "", "text": "having obtained a certificate of substantially continuous service from the Maritime Service, (2) being still qualified to perform his duties as a Information Publicist, and (3) having made timely application to the State Department for reinstatement, he should have been reemployed by the State Department on or about April 1, 1947, in his former position or a similar position of like seniority, status, and pay. The failure of the State Department to extend to him these rights entitles him, plaintiff insists, to recover back pay for the period from April 1, 1947, i. e,, the effective date of his requested reinstatement, to December 31, 1951, less amounts received from other employment during that period. Although admittedly his position with the OCIA A was held under a war service indefinite appointment, plaintiff urges that it was “other than a temporary position” within the meaning of 50 U.S.C.A. Appendix, § 1472(a) because, being for the duration of the war and six months thereafter, it was for an indefinite period. Defendant insists that the reemployment rights created by the Merchant Marine Reemployment Act do not apply to persons like plaintiff who held positions in the United States Government under war service indefinite appointments because such positions were temporary in nature. In support of this argument defendant relies upon an opinion by the Attorney General of the United States, 40 Op.Atty.Gen. 271, and upon Powell v. Royall, D.C., 80 F.Supp. 820. War service indefinite appointments, such as plaintiff’s were made possible by the suspension on March 16, 1942, of the regular Civil Service regulations for the wartime period under Executive Order No. 9063 of February 16, 1942, 3 C.F.R., Cum. Supp., p. 1091, U.S.Code Cong.Service 1942, p. 1228, and by the substitution of War Service Regulations promulgated by the Civil Service Commission. Under the terms of War Service Regulation V) 5 C.F.R., Cum.Supp., § 18.5(b), war service appointees did not acquire a classified Civil Service status, but rather were limited to a period not to exceed the legal duration of the war, and six months thereafter. The question of whether war service indefinite appointees" }, { "docid": "8557612", "title": "", "text": "of the United States Government, * * *, such persons shall be restored to such position or to a position of like seniority, status, and pay, without regard to whether such position shall have been covered into the classified civil service during the period of his military, naval or merchant marine service; Í¡c sjí íJí jj: “(d) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (a) of this section shall be considered as having been on furlough or leave of absence during his period of service, shall be so restored without loss of seniority, * * * and shall not be discharged from such position without reasonable cause within one year after such restoration. * * * * * * “§ 1475. The Administrator, War Shipping Administration, may make such rules and regulations as he deems necessary or appropriate to carry out the provisions of this Act.2” Plaintiff contends that inasmuch as he complied with the terms of the above-quoted statute in (1) having obtained a certificate of substantially continuous service from the Maritime Service, (2) being still qualified to perform his duties as a Information Publicist, and (3) having made timely application to the State Department for reinstatement, he should have been reemployed by the State Department on or about April 1, 1947, in his former position or a similar position of like seniority, status, and pay. The failure of the State Department to extend to him these rights entitles him, plaintiff insists, to recover back pay for the period from April 1, 1947, i. e,, the effective date of his requested reinstatement, to December 31, 1951, less amounts received from other employment during that period. Although admittedly his position with the OCIA A was held under a war service indefinite appointment, plaintiff urges that it was “other than a temporary position” within the meaning of 50 U.S.C.A. Appendix, § 1472(a) because, being for the duration of the war and six months thereafter, it was for an indefinite period. Defendant insists that the reemployment rights created by" }, { "docid": "8557616", "title": "", "text": "“temporary” within the meaning of section 8 of the Selective Training and Service Act. * * * * ijc # * * J}« “In holding that War Service appointees are not entitled to demand the benefits of section 8, I do not mean to imply that similar benefits cannot be administratively extended to them in proper cases. In my opinion such benefits may and should be extended to War Service appointees when administratively possible.” [Italicized material inserted.] This opinion, we believe, correctly summarizes the statutory rights of members of the Armed Forces and Merchant Marine who claim reemployment rights to positions held under war service indefinite appointments. Such positions, being only for the duration of the war, and being designed to fill emergency needs, cannot be said to be permanent in nature. While the opinion of the Attorney General did not concern itself directly with the provisions of 50 U.S.C.A.Appendix, §§ 1471— 1475 which set forth the reemployment rights of Merchant Marine personnel, we think that the conclusions therein may be safely applied to the Merchant Marine because of the similarity in the terms and purposes of the two acts. In fact, the legislative history of the Merchant Marine Reemployment Act, S.Rep. 262. 78th Cong. 1st Sess., points out that the “bill \"follows substantially provisions of law applicable to persons entering the armed forces of the United States.” Cf. H.Rept. 106, 78th Cong., 1st Sess. Therefore, we conclude that plaintiff, as a war service indefinite appointee, did not have a statutory right under the Merchant Marine Reemployment Act to reemployment in the State Department. In pursuance of the recommendation by the Attorney General that war service indefinite employees should be entitled to reemployment rights “in proper cases,” the Civil Service Commission issued rules and regulations which closely followed the terms of the Selective Training and Service Act, supra, and which provided for what were designated as regulatory reemployment rights. The regulations in effect at the time plaintiff terminated his active duty in the Merchant Marine on March 31, 1947, were issued by the Civil Service Commission on February 6, 1946," } ]

[ { "docid": "22656517", "title": "", "text": "made. The sentencing judge ended discussion, with the following statement, quoting extensively from the pre-sentence report: “Mr. Aronstein [Defense Counsel], I am not at all influenced by what the District Attorney says, so that there is no need to adjourn the sentence, and there is no need to have any testimony. It doesn’t make a particle of difference what the District Attorney says he will do, or what he doesn’t do. “I have here, Mr. Aronstein, a probation report. I have here a history of a long, long serious criminal record. I have here a picture of the life history of this man. . . . “ ‘He is unamenable to supervision in the community. He is a professional criminal.’ This is in quotes. ‘And a recidivist. Institutionalization — ’; that means, in plain language, just putting him away, ‘is the only means of halting his anti-social activities/ and protecting you, your family, me, my family, protecting society. ‘Institutionalization.’ Plain language, put him behind bars. “Under the plea, I can only send him to the New York City Correctional Institution for men for one year, which I am hereby doing.” The judge then imposed the maximum sentence of one year. Petitioner sought and obtained a certificate of reasonable doubt and was admitted to bail pending an appeal. The Supreme Court of the State of New York, Appellate Division, First Department, unanimously affirmed petitioner’s conviction, 35 App. Div. 2d 1084, 316 N. Y. S. 2d 194 (1970), and petitioner was denied leave to appeal to the New York Court of Appeals. Petitioner then sought certiorari in this Court. Mr. Justice Harlan granted bail pending our disposition of the case. This record represents another example of an unfortunate lapse in orderly prosecutorial procedures, in part, no doubt, because of the enormous increase in the workload of the often understaffed prosecutor’s offices. The heavy workload may well explain these episodes, but it does not excuse them. The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea bargaining,” is an essential component of the administration of justice." } ]

[ { "docid": "18454603", "title": "", "text": "L.Ed. 1787 (1948). Because plaintiffs’ nursing home is a “hospital” under New York law (Public Health Law § 2801; Sigety v. Hynes, supra) and is the recipient of federal Medicaid payments, it is required by regulations of both the federal government (See, e. g., Social Security Administration, U. S. Department of Health, Education and Welfare, Pub. No. 8 H.I.M. 15, Medicare Provider Reimbursement Manual, §§ 2304, 2404.3, 2422.3) and the state government (See, e. g., 10 N.Y. Code of Rules and Regulations §§ 86.4, 86.21(a), 730.3(f)(2), (3), 730.-4(c), 730.6(c), (e), (i), (j), (k), (m), 730.9(c)) to maintain for audit and inspection by others records of the type subpoenaed here. Moreover, in order to qualify for receipt of Medicaid payments, plaintiffs were required to execute a “Medicaid Provider Agreement” which required plaintiffs, among other things, “to keep such records as are fully necessary to disclose the extent of service provided * * * and “to furnish the New York State Department of Social Services with such information and regarding any payments claimed by the nursing home for providing such services * * * Under such circumstances it is ludicrous for plaintiffs to claim as they do that their nursing home records are constitutionally sheltered from defendant’s subpoena because they are the “personal records” of a “private family business”. On the contrary, regardless of the form under which plaintiffs have elected to carry on their nursing home operation, their activity is substantially interwoven with the public interest and the records which they have kept in furtherance of that business and to obtain governmental reimbursement for expenditures, are properly subject to subpoena by the state’s special prosecutor who has been specifically authorized to investigate the industry. The cases relied upon by plaintiffs to avoid application of the “required records” doctrine, Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973)," }, { "docid": "22922925", "title": "", "text": "Park Crescent receives more than 90% of its income from governmental sources through Medicaid and Medicare reimbursements. In 1975 Bergman was indicted by a federal grand jury for filing false tax returns, submitting false Medicaid claims, making fraudulent statements to the federal government, and conspiracy to defraud the government and commit these offenses. He was also indicted by a New York State grand jury for conspiracy, filing fraudulent reimbursement claims, larceny, and obstruction of governmental administration. Negotiations with the United States Attorney for the Southern District of New York and with Assistant Attorney General Charles J. Hynes, the Special State Prosecutor for Health and Social Services, led to a plea agreement, one provision of which was that “Bernard Bergman will pay to the State of New York, voluntarily . . . whatever sums of money are owing to the State of New York from the Towers Nursing Home and other nursing homes in which he has an interest arising out of Medicaid payments.” In order to comply with this provision of the plea agreement, Bergman and his wife signed on September 14, 1976, a confession of judgment for $2.5 million, and a document stating that the Bergmans: “ . . . hereby, assign to the O.S.P. [Office of Special Prosecutor] Nursing Home Restitution Fund, and to any nominee (hereafter referred to as the receiver) selected by the Special State Prosecutor, Charles J. Hynes, to act in this matter on behalf of the State of New York and said Fund all right, title, and interest held by us directly or indirectly, in all property, real and personal, wherever situated, this assignment being for the purpose of the liquidation, sale and disposal by the said receiver of said property as is necessary to provide funds to fully satisfy Bernard Bergman’s obligation to pay to the O.S.P. Nursing Home Restitution Fund the sum of two million, five hundred thousand dollars.” The document further obligated Bergman and his wife to “cooperate with, aid and assist the receiver, in whatever manner he shall request, in the sale, disposition and conversion to cash of our assets,”" }, { "docid": "22200477", "title": "", "text": "WOODBURY, Chief Judge. These three appellants and one Nathaniel Bergman of Hartford, Connecticut, were indicted by a grand jury in the court below on three counts. Count 1 charges the three appellants and Bergman with conspiring (1) to bribe one Charles J. McCaffrey, an employee of the Internal Revenue Service of the United States Department of the Treasury, and (2) to defraud the United States in its governmental functions by depriving it of McCaffrey’s conscientious, honest and faithful service in violation of Title 18 U.S.C. § 371. Count 2 charges Bergman and the appellants Glassman and Gorin with giving McCaffrey $10,-000 with intent to influence his decision and action on a matter at the time pending before him in his official capacity, in short with bribesry, in violation of Title 18 U.S.C. § 201. Count 3 describes Grillo as a United States officer acting in connection with the revenue laws of the United States and charges him alone with conspiring with the other three, who were named as co-conspirators but not as co-defendants, to defraud the United States in its governmental functions in violation of Title 26 U.S.C. § 7214(a) (4). Following the denial of a number of preliminary motions to be discussed presently, the four defendants were tried by jury on pleas of not guilty, were found guilty as charged and were sentenced. All appealed, but Bergman withdrew his appeal before hearing. Before the trial began each defendant moved to dismiss the indictment and to strike the entire panel of petit jurors on the ground that both the grand and petit jurors had been improperly selected. The motions were denied after a hearing at which evidence was taken. The evidence adduced shows that the jury commissioners of the United States District Court for the District of Massachusetts selected persons for service as jurors from the jury lists of the various cities and towns in Massachusetts, that the City of Boston was within the part of the district designated by the district court under Title 28 U.S.C. § 1865(a) as the source from which the jurors with whom we are" }, { "docid": "17863312", "title": "", "text": "the physician-patient privilege, Lewis v. Hynes, 82 Misc.2d 256, 261-63, 368 N.Y.S.2d 738, 744-45 (Sup.Ct.1975), followed in Kent Nursing Home v. Office of the Special State Prosecutor for Health & Social Services, 49 A.D.2d 616, 370 N.Y.S.2d 669 (2d Dept.) (compelling production only of nonmedical records required under 10 (N.Y.C.R.R. 730.-6), aff’d sub nom. Sigety v. Hynes, 38 N.Y.2d 260, 379 N.Y.S.2d 724, 342 N.E.2d 518 (1975). . The majority accepts much of the analysis. It also seems to abandon one of the New York provisions urged by the Government, namely, the regulation requiring disclosure of the records on demand of the patient or when required for his reimbursement, and relies solely on the availability of the records to authorities who might be investigating Dr. Doe for professional misconduct, notably, the “ordering of excessive tests, treatment, or use of treatment facilities not warranted by the condition of the patient,” 8 N.Y.C.R.R. § 29.2(a)(8) (1981). It is not clear to me that this provision, especially when read in context, would cover Dr. Doe’s alleged misconduct. Moreover, New York’s interest in disciplinary action is quite different from the Federal Government’s interest in criminal sanctions. . Dr. Warren was charged with and found guilty of selling, delivering, and disposing of amphetamine sulphate. The federal statute under which he was convicted required him to make and keep records on the disposition of amphetamine, and the records in question consisted only of patient names and notations of the number of injections given, the dates, and the charges made for them. As this court specifically noted, 453 F.2d at 742, “[tjhey contained no other medical information.” To the same effect is United States v. Rosenberg, 515 F.2d 190, 199-200 (9 Cir.) (opinion by Judge Lumbard, sitting by designation), cert. denied, 423 U.S. 1031, 96 S.Ct. 562, 46 L.Ed.2d 404 (1975), a prosecution of a physician for federal narcotics law violations, in which a subpoena for “patient records as they related to the dispensation of narcotic substances” was found to be within the required records exception insofar as it compelled production of prescription records required to be" }, { "docid": "18892222", "title": "", "text": "the problem of sentencing handled by the federal court. He further agreed to “recommend to the Judge of the New York State Supreme Court who will sentence Bernard Bergman on his plea of guilty to making unlawful payments to [a state legislator] that, in light of Bernard Bergman having voluntarily disclosed the facts of the crime to the Special Prosecutor and since the Federal Judge will know of these facts when he imposes sentence on the Federal charges, no sentence additional to that imposed by the United States District Court Judge on the federal indictment be imposed here.” The occasion for the application to postpone surrender is an unresolved dispute, evidently in progress for some time, over the restitution aspect of the state plea bargain. It has been agreed that the defendant “will pay to the State of New York, voluntarily, without any civil action or litigation of any kind, whatever sums of money are owing to the State of New York the amount to be determined after accountants representing the United States, the State of New York, and the defendant have consulted and examined the relevant financial records. The Special Prosecutor has argued in the state court that the main fault for failing to reach an agreement as to the amount to be paid lies on Dr. Bergman’s side. He has said that the plea agreement might well become “a nullity” if the defendant’s resistance continues, and might amount after all only to “froth.” If the state plea bargain, for any reason, becomes “a nullity,” serious questions will arise as to the closely connected federal bargain. If the Special Prosecutor is forced, after all, to go first, as had been planned, and prove his charges in open court, as he has thus far chosen not to do, there may be an issue as to whether the secondary federal case is barred by double jeopardy or other defenses. More significantly, the federal plea bargain and the state plea bargain are tied inseparably together. The court may not overlook the evident possibility that nullification of the state plea bargain may lead" }, { "docid": "22922924", "title": "", "text": "MANSFIELD, Circuit Judge: The sole issue on this appeal from an order of the Southern District of New York affirming a decision of the bankruptcy court is whether the debtor, Bernard Bergman, d/b/a Park Crescent Nursing Home (“Park Crescent”), is the “legal or equitable owner” of real property in the Park Crescent within the meaning of Chapter XII of the Bankruptcy Act, 11 U.S.C. §§ 801 et seq., which permits a debtor owning such an interest to invoke the jurisdiction of the bankruptcy court for the purpose of arriving at a court-approved arrangement alter- • ing or modifying the rights of creditors holding debts secured by the debtor’s interest. We hold that the debtor here does have such an interest and therefore affirm. The debtor, Bernard Bergman, formerly operated the Park Crescent, a nursing home located at 150 Riverside Drive in Manhattan. It is one of the largest nursing homes in the state of New York, with a 520-bed capacity and is fully occupied by elderly residents, many of whom are indigent and infirm. The Park Crescent receives more than 90% of its income from governmental sources through Medicaid and Medicare reimbursements. In 1975 Bergman was indicted by a federal grand jury for filing false tax returns, submitting false Medicaid claims, making fraudulent statements to the federal government, and conspiracy to defraud the government and commit these offenses. He was also indicted by a New York State grand jury for conspiracy, filing fraudulent reimbursement claims, larceny, and obstruction of governmental administration. Negotiations with the United States Attorney for the Southern District of New York and with Assistant Attorney General Charles J. Hynes, the Special State Prosecutor for Health and Social Services, led to a plea agreement, one provision of which was that “Bernard Bergman will pay to the State of New York, voluntarily . . . whatever sums of money are owing to the State of New York from the Towers Nursing Home and other nursing homes in which he has an interest arising out of Medicaid payments.” In order to comply with this provision of the plea agreement, Bergman" }, { "docid": "22922929", "title": "", "text": "1977, on motion of New York Attorney General Louis Lefkowitz and Deputy Attorney General Charles J. Hynes, and with the consent of the debtor, the bankruptcy court appointed James L. Garrity as trustee of the debtor’s property. Since that time the trustee has been operating the Park Crescent with the approval of the State Department of Health. By motion dated June 14, 1977, Chase sought summary dismissal of the bankruptcy proceeding on the ground that the debtor was neither the legal nor equitable owner of the Park Crescent realty, and was therefore not entitled to invoke the bankruptcy procedures of Chapter XII. The Chase motion was based on Bergman’s entry into the September 14, 1976, plea agreement whereby he had assigned all of his assets to the special fund established for the purpose of making restitution to the State of New York for excess payments previously made by the State to Bergman pursuant to allegedly fraudulent reimbursement claims submitted by Bergman’s nursing homes. Along with the motion to dismiss, Chase initiated an adversary proceeding seeking an order lifting and/or vacating the automatic stay of the foreclosure sale. After hearings in June and July 1977, Bankruptcy Judge John J. Galgay denied the Chase motion, holding that “the jurisdictional requisites of legal and equitable ownership of realty are present . the debtor is recognized in equity as the owner of the property because the real and beneficial use and title belong to him, notwithstanding any ‘assignment to the O.S.P. Restitution Fund’.” Chase appealed this decision only with respect to the jurisdictional issue to the district court, which concluded that further evidence, including a report from Mr. Clark, the receiver appointed by the state court to sell such of the debtor’s property as might be necessary to satisfy the $2.5 million judgment, should be taken by the bankruptcy court to determine whether Bergman, after satisfaction of the judgment, might be expected to retain any residual interest in the Park Crescent. Judge Pollack noted that this evidence would be relevant to the question of whether the September 14, 1976, Bergman assignment should be treated" }, { "docid": "13530168", "title": "", "text": "mail fraud. After his arrest, Burruezo apparently began cooperating with federal authorities in their investigation of fraud in the automobile insurance industry. Burruezo appears to have entered into a written plea agreement with the offices of the United States Attorney for the Eastern District of New York and for the District of New Jersey. In that agreement, which is not part of the record on appeal and was not before the district judge, we are told that Burruezo agreed to continue to cooperate with the federal authorities in their investigation. In return for and subject to that cooperation, the government agreed to permit Burruezo to plead guilty to both counts of the New York information and one substantive count of the New Jersey indictment. The pleas would be taken and sentence imposed in the Eastern District of New York pursuant to Fed.R.Crim.P. 20. The government also agreed, among other things, that “any prison sentences imposed on [the] pleas of guilty shall not exceed ten years.” While the government made clear that it would not make specific recommendations with respect to sentencing, it agreed to bring Burruezo’s cooperation to the attention of the court. In June 1982, Burruezo appeared before Judge Bramwell for the purpose of pleading guilty. The judge proceeded to question Burruezo to make sure that the pleas to the three counts were voluntary, that Burruezo understood the various constitutional rights he was giving up and that there were factual bases for the pleas. When the judge asked Burruezo whether he had been made any promises which had induced the plea of guilty, the prosecutor requested that the response be given at sidebar. There, on the record, the prosecutor disclosed to the court the terms of the plea agreement as follows: MS. GIACALONE [Attorney for the government]: Pursuant to the plea agreements entered between these defendants and the Government, the Government has agreed that, with the Court’s consent, of course, they will not be sentence [sic] to more than ten years in jail. That any sentence on the New Jersey indictment would be concurrent with any sentence on the" }, { "docid": "22922928", "title": "", "text": "expenses of the receivership.” Ramsey Clark, former United States Attorney General, was appointed receiver of Bergman’s assets. People v. Bergman, 55 A.D.2d 542, 389 N.Y.S.2d 589 (1st Dept.). Chase Manhattan Mortgage and Realty Trust (“Chase”) is the holder of a mortgage in the principal sum of approximately $7.5 million on the Park Crescent. When the debtor failed to make timely payments on this mortgage in 1976, Chase commenced an action in the Supreme Court of the State of New York to foreclose the mortgage. On October 29, 1976, Chase obtained summary judgment in its favor in the mortgage foreclosure proceeding, and after judgment was entered on May 17, 1977, a foreclosure sale of the property was set for June 10, 1977. However, on June 9, 1977, Bergman filed in the Southern District of New York Bankruptcy Court a petition under Chapter XII, § 422 of the Bankruptcy Act. Thereupon, the bankruptcy court entered an order continuing the debtor in possession and operation of the business and property and staying the foreclosure sale. On June 17, 1977, on motion of New York Attorney General Louis Lefkowitz and Deputy Attorney General Charles J. Hynes, and with the consent of the debtor, the bankruptcy court appointed James L. Garrity as trustee of the debtor’s property. Since that time the trustee has been operating the Park Crescent with the approval of the State Department of Health. By motion dated June 14, 1977, Chase sought summary dismissal of the bankruptcy proceeding on the ground that the debtor was neither the legal nor equitable owner of the Park Crescent realty, and was therefore not entitled to invoke the bankruptcy procedures of Chapter XII. The Chase motion was based on Bergman’s entry into the September 14, 1976, plea agreement whereby he had assigned all of his assets to the special fund established for the purpose of making restitution to the State of New York for excess payments previously made by the State to Bergman pursuant to allegedly fraudulent reimbursement claims submitted by Bergman’s nursing homes. Along with the motion to dismiss, Chase initiated an adversary proceeding seeking" }, { "docid": "22922951", "title": "", "text": "of such property subject to such debts; or (b) by a sale of such property free of such debts, at no less than a fair upset price, and the transfer of such debts to the proceeds of such sale; or (c) by appraisal and payment in cash of the value of such debts; or (d) by such method as will, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection; . . . ” LUMBARD, Circuit Judge (dissenting): I dissent from my brothers’ conclusion that Bergman stands as the legal or equita ble owner of the Park Crescent Nursing Home and is therefore eligible to invoke the procedures of Chapter XII of the Bankruptcy Act. Bergman’s highly unusual position with respect to the Park Crescent property is the result of his indictment in 1975 for fraud in connection with Medicaid and state welfare reimbursements. Following his indictment, Bergman entered into a plea agreement which required, among other things, that he return $2.5 million to the State. Pursuant to the agreement, Bergman and his wife assigned “all right, title and interest held by us, directly or indirectly, in all property, real and personal” to New York’s Office of the Special Prosecutor (OSP), the latter being authorized to sell as much of the Bergmans’ property as necessary to satisfy the $2.5 million obligation. Although the majority is right to state that the only issue before us is whether the bankruptcy court has the power to proceed, I believe it misconceives the nature of that court’s jurisdiction when it suggests that we need not consider Bergman’s ability to propose a workable plan. To be eligible for the provisions of Chapter XII a petitioner must qualify as a “debtor,” defined in part by § 406(6) of the Bankruptcy Act as “a legal or equitable owner” of real property. This limitation “is correlated with the requirement [of § 406(1)] that a plan have ‘for its primary purpose the alteration or modification of the rights of creditors or of any class of them, holding debts secured by real property ." }, { "docid": "17863311", "title": "", "text": "genesis was in Judge Frank’s dissent in United States v. Grunewald, 233 F.2d 556, 581-82 (2 Cir.1956), rev’d without discussion of this point, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). . It is by no means clear that New York would apply the required records exception if a New York prosecutor sought to compel production of the patient files in an investigation of violations of New York’s narcotics laws. One lower New York court has held the required record exception inapplicable to patients’ medical records subpoenaed from a practitioner charged with sexually abusing his patients, People v. Cohen, 98 Misc.2d 874, 876, 414 N.Y.S.2d 642, 643 (Dist.Ct.1979), although a limited production was compelled on the ground that the patients’ right of access to the records prevailed over the practitioner’s Fifth Amendment claim. In several cases involving nursing home abuses, New York courts have found the exception applicable to nursing home patients’ medical records as well as financial records, but have refused to compel the production of the former on the basis of the physician-patient privilege, Lewis v. Hynes, 82 Misc.2d 256, 261-63, 368 N.Y.S.2d 738, 744-45 (Sup.Ct.1975), followed in Kent Nursing Home v. Office of the Special State Prosecutor for Health & Social Services, 49 A.D.2d 616, 370 N.Y.S.2d 669 (2d Dept.) (compelling production only of nonmedical records required under 10 (N.Y.C.R.R. 730.-6), aff’d sub nom. Sigety v. Hynes, 38 N.Y.2d 260, 379 N.Y.S.2d 724, 342 N.E.2d 518 (1975). . The majority accepts much of the analysis. It also seems to abandon one of the New York provisions urged by the Government, namely, the regulation requiring disclosure of the records on demand of the patient or when required for his reimbursement, and relies solely on the availability of the records to authorities who might be investigating Dr. Doe for professional misconduct, notably, the “ordering of excessive tests, treatment, or use of treatment facilities not warranted by the condition of the patient,” 8 N.Y.C.R.R. § 29.2(a)(8) (1981). It is not clear to me that this provision, especially when read in context, would cover Dr. Doe’s alleged misconduct. Moreover," }, { "docid": "18892221", "title": "", "text": "offenses originally charged. Under the federal agreement, the defendant was permitted to plead guilty by reading a prepared statement of narrowly drawn, tightly limited admissions of fact, which were to be all the defendant would confess (and all he could justly be sentenced for). This statement contained nothing, for example, about $1.2 million or $2.5 million or any other astronomical sums of allegedly fraudulent Medicaid claims. There was certainly nothing about whether the Bergman nursing homes had given good or bad nursing care. This court’s duty was, of course, to sentence defendant for what he had admitted, not upon accusations that were not only unproved, but that the prosecutors had agreed to drop as criminal charges. The general public could easily have misunderstood this. But the plea bargainers certainly had no reason to misunderstand. It appears, however, that there have been, putting the best face upon things, some possible misunderstandings. As part of the plea bargain, though his case has been scheduled as the first and primary one, the Special State Prosecutor agreed to have the problem of sentencing handled by the federal court. He further agreed to “recommend to the Judge of the New York State Supreme Court who will sentence Bernard Bergman on his plea of guilty to making unlawful payments to [a state legislator] that, in light of Bernard Bergman having voluntarily disclosed the facts of the crime to the Special Prosecutor and since the Federal Judge will know of these facts when he imposes sentence on the Federal charges, no sentence additional to that imposed by the United States District Court Judge on the federal indictment be imposed here.” The occasion for the application to postpone surrender is an unresolved dispute, evidently in progress for some time, over the restitution aspect of the state plea bargain. It has been agreed that the defendant “will pay to the State of New York, voluntarily, without any civil action or litigation of any kind, whatever sums of money are owing to the State of New York the amount to be determined after accountants representing the United States, the State" }, { "docid": "420339", "title": "", "text": "CARDAMONE, Circuit Judge: Otis Tate filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking relief from a 1984 judgment of the Orange County Court, New York, convicting him, upon a guilty plea, of manslaughter in the first degree and sentencing him to an indeterminate term of imprisonment of four and one-half to nine years, to be served consecutively to a prior 18-year federal term of imprisonment. Tate appeals from the May 16, 1991 order of the United States District Court for the Southern District of New York (Griesa, J.) summarily denying the habeas petition. We reverse. FACTS While serving an 18-year federal sentence petitioner Otis Tate stabbed and killed a fellow inmate at the Otisville Federal Correctional Institution in Otisville, New York. The fatality occurred on April 9, 1983 during a fight between petitioner and the victim, Emanual Stewart. It was witnessed by Benjamin Charles, a correctional officer, and the government’s chief witness before the grand jury. Several weeks after this fatality, petitioner was indicted for murder in the second degree. Upon arraignment Gary Abramson, Esq. of the Legal Aid Society of Orange County was appointed as his counsel. A not guilty plea was entered. Not satisfied with Mr. Abramson’s representation, Tate moved on January 30, 1984 for the appointment of different counsel or, in the alternative, to proceed pro se. The request for the appointment of another attorney was denied, but the state trial court allowed petitioner to proceed pro se, with attorney Abramson assigned to serve as “standby counsel.” During much of the period from his May 1983 arraignment until his March 1984 plea Tate was held in solitary confinement. His state habeas petition for release from such confinement in order to prepare his defense was denied. In February 1984 defendant wrote a letter to attorney Abramson in which he requested that counsel meet with him to discuss his case. He received the following reply in response: ... please be advised that responsibilities here to clients I actually represent preclude my coming to Otisville to assist you in my assigned capacity" }, { "docid": "22188968", "title": "", "text": "could be “characterized as generous”, because the investigations by the government and the Probation Office showed that Ar-nett was the more culpable of the two defendants; nonetheless each received the same sentence. The response concluded: “there is no basis for even considering a modification unless and until defendant can come up with some new factor to justify such consideration.” Arnett moved to strike the government’s response, on the ground that it violated the plea agreement. The government in turn argued that the plea bargain bound it only to take no position at the time of sentencing, and that the agreement did not affect its duty to make an appropriate response in subsequent proceedings seeking reduction of the sentence. The court denied the Rule 35 motion. Arnett asks this court to vacate that order and to remand the case for reconsideration of the Rule 35 motion by a different judge. In the trial court, Arnett expressed his belief that transfer to another judge was not necessary unless the court felt it could not disregard the government’s response, in which case Arnett would request such a transfer. One case, United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973), tends to support Arnett’s position. In Ewing, the government promised as part of a plea bargain not to oppose defendant’s request for probation. The government attorney at sentencing did not oppose defendant’s arguments for probation. The defendant was sentenced to a term in prison. He brought a Rule 35 motion, and a second government attorney, apparently ignorant of the agreement, opposed the motion. The Fifth Circuit held that the Rule 35 proceeding was a part of the entire sentencing process, and that the government’s opposition was a violation of the plea bargain. The government maintains, however, that Bergman v. Lefkowitz, 569 F.2d 705 (2d Cir. 1977), is closer in point. The Special State Prosecutor in Bergman had promised in a plea agreement that he would recommend that the state court impose no sentence in addition to one previously imposed by a federal district court incident to charges arising from the same facts. The" }, { "docid": "18892226", "title": "", "text": "O. Holmes, Common Law 41-42, 45 (1881). . See A. von Hirsch, Doing Justice 45-55 (1976); see also N. Morris, The Future of Imprisonment 73-77 (1974). . Despite Biblical teachings concerning what is expected from those to whom much is given, the court has not, as his counsel feared might happen, held Dr. Bergman to a higher standard of responsibility because of his position in the community. But he has not been judged under a lower standard either. . Cf. Andenaes, supra note 7, at 656. . Andenaes, supra note 7, at 653. . Implementing the understanding that the state case would go to trial first, and might well obviate a trial of the federal case altogether, this court on September 29, 1975, deferred the federal prosecution, noting “that the central concerns of the two prosecutions relate primarily to matters of state interest.” The adjournment was granted on papers that included an affidavit by the Special State Prosecutor, who pointed out that his office had conducted “a thorough investigation into alleged abuses and fraudulent practices in the nursing home industry.” There was every reason to expect that the results of that investigation would be made the subjects of lawful proof, under familiar safeguards, in the state prosecution. On that anticipation, a month later this court disposed very briefly of a substantial motion in which the defendant urged that the federal indictment alleged essentially state claims and was not a valid indictment at all. In thus deciding that the motion should not be granted, this court observed that the case might well have a different aspect after the completion of the state prosecution, and that it might well prove unnecessary to consider whether there was any sufficient federal interest to pursue. . Defendant has also applied to have the court recommend that his sentence be served in a halfway house. The Government opposes on seemingly sound grounds. Halfway houses serve special purposes, none of which appears pertinent to this case. The recommendation defendant seeks will not be made. Ultimately, of course, the place of confinement is for' the Attorney General, through" }, { "docid": "15567112", "title": "", "text": "imprisonment not to exceed seven years. On December 3, 1974 the Appellate Division unanimously affirmed both convictions. People v. Gomberg, 46 A.D.2d 850, 362 N.Y.S.2d 832 (1st Dept. 1974) (mem.); People v. Kaplan, 46 A.D.2d 850, 362 N.Y.S.2d 833 (1st Dept. 1974) (mem.). The New York Court of Appeals on December 29,1975, in a comprehensive opinion by Judge Jasen, also unanimously affirmed both convictions. People v. Gomberg and Kaplan, 38 N.Y.2d 307, 342 N.E.2d 550, 379 N.Y.S.2d 769 (1975). An application for a stay was denied by Mr. Justice Marshall of the United States Supreme Court. No further review was sought in the Supreme Court. Having exhausted his state remedies, Kaplan filed the instant petition for a writ of habeas corpus in the Southern District of New York on June 1, 1976, from the denial of which by Judge Goettel in a well reasoned opinion filed January 6, 1977 the instant appeal has been taken. II. In view of the adequate statements of the facts in the opinions of the New York Court of Appeals and of the district court below with which we assume familiarity, we shall summarize here only those facts and prior proceedings necessary to an understanding of our rulings below on petitioner’s claim of denial of effective assistance of counsel. Turning first to the state court proceedings prior to trial, Justice Denzer conducted a hearing to determine if joint representation would create a potential conflict of interest prejudicial to any of the defendants. In the presence of defense counsel' and the assistant district attorney, the judge addressed the three defendants to determine if they viewed their defense “as being in conflict or that there might be a conflict of interest with respect to any attorney that represents all three of you.” When asked if he wished to change lawyers, Hodas replied that he wanted Kassner to continue to represent him. Gomberg at first appeared not to understand what the judge was getting at, stating that it might be “better for us to get another lawyer.” At that point the prosecutor stated that in his view the" }, { "docid": "22922927", "title": "", "text": "and specified that “[u]pon the payment of such sums [$2,500,000], the receiver shall return to us such of the assets assigned to him as are undisposed of.” The Bergman assets thus assigned for the purpose of satisfying the $2.5 million obligation included Bergman’s interests in numerous other nursing home and realty enterprises besides Park Crescent. Simultaneously with the execution of the plea agreement, confession of judgment, assignment and agreement to cooperate, Bergman executed a security agreement which confirms that the sole purpose of the other documents was to assure that the state’s judgment would be satisfied. On September 30, 1976, Hynes moved in the New York State Supreme Court pursuant to CPLR § 5528(a) for the appointment of a receiver “to sell . . . property and apply the proceeds therefrom to the satisfaction of the judgment rendered . against . . . Bernard Bergman . in favor of the judgment creditor, People of the State of New York, for the sum of Two Million Five Hundred Thousand Dollars, plus interest, plus the costs and expenses of the receivership.” Ramsey Clark, former United States Attorney General, was appointed receiver of Bergman’s assets. People v. Bergman, 55 A.D.2d 542, 389 N.Y.S.2d 589 (1st Dept.). Chase Manhattan Mortgage and Realty Trust (“Chase”) is the holder of a mortgage in the principal sum of approximately $7.5 million on the Park Crescent. When the debtor failed to make timely payments on this mortgage in 1976, Chase commenced an action in the Supreme Court of the State of New York to foreclose the mortgage. On October 29, 1976, Chase obtained summary judgment in its favor in the mortgage foreclosure proceeding, and after judgment was entered on May 17, 1977, a foreclosure sale of the property was set for June 10, 1977. However, on June 9, 1977, Bergman filed in the Southern District of New York Bankruptcy Court a petition under Chapter XII, § 422 of the Bankruptcy Act. Thereupon, the bankruptcy court entered an order continuing the debtor in possession and operation of the business and property and staying the foreclosure sale. On June 17," }, { "docid": "18892220", "title": "", "text": "frauds and larcenies, but then chose to deal away most of the charges in two narrowly drawn plea bargains. It is highly probable that if either prosecutor had proved even a substantial part of his charges in open court, Dr. Bergman would have faced a heavy sentence indeed. Instead of taking these charges to trial, however, the prosecutors entered into interrelated plea bargains with the defendant’s counsel. Both agreements were reduced to writing, signed by the parties, and made a part of the public record. The federal and state plea bargains provided that the Special State Prosecutor was to drop his fraud and larceny indictment altogether and only require the defendant to plead to a much narrower one charging bribery of a state legislator. (That indictment was dismissed as against the legislator. The dismissal is being appealed.) Both plea agreements provided that Dr. Bergman was to plead guilty to only Counts One and Three of the 11-count federal indictment. Although these are serious crimes, they are moderate in comparison to the full panoply of the offenses originally charged. Under the federal agreement, the defendant was permitted to plead guilty by reading a prepared statement of narrowly drawn, tightly limited admissions of fact, which were to be all the defendant would confess (and all he could justly be sentenced for). This statement contained nothing, for example, about $1.2 million or $2.5 million or any other astronomical sums of allegedly fraudulent Medicaid claims. There was certainly nothing about whether the Bergman nursing homes had given good or bad nursing care. This court’s duty was, of course, to sentence defendant for what he had admitted, not upon accusations that were not only unproved, but that the prosecutors had agreed to drop as criminal charges. The general public could easily have misunderstood this. But the plea bargainers certainly had no reason to misunderstand. It appears, however, that there have been, putting the best face upon things, some possible misunderstandings. As part of the plea bargain, though his case has been scheduled as the first and primary one, the Special State Prosecutor agreed to have" }, { "docid": "14031630", "title": "", "text": "HAYS, Circuit Judge: The Commissioner of Correction of the State of New York, respondent, and the State of New York, intervenor, appeal from an order of the United States District Court for the Southern District of New York granting defendant Sheldon Selikoff’s petition for a writ of habeas corpus. We reverse the order of the district court. Selikoff was indicted in New York under four separate multicount indictments. Under three indictments Selikoff was charged with various crimes allegedly arising out of a complex real estate swindle. Under the fourth indictment defendant was charged with obscenity and related offenses. Defendant pleaded not guilty to all charges. Shortly after trial commenced on one of the indictments which charged involvement in the real estate swindle, the defendant moved to withdraw his pleas of not guilty. This motion was made after extensive negotiation with the prosecutor and conferences with the trial judge. Under the agreement reached between the prosecutor and the defense, Selikoff pleaded guilty to one count of grand larceny in the second degree in full satisfaction of the three indictments relating to the real estate deal and to one count of obscenity in the second degree in full satisfaction of the fourth indictment. At the time the revised pleas were entered the trial judge, directing his comments to the defendant, said: I have had a number of conferences with your attorney and with representatives of the District Attorney’s Office with regard to the cases against you. Based upon the results of the conferences and conversations and the fact and representation made to the court, I indicated to the attorney and I am now indicating to you that in my opinion in the interest of justice that no incarceration of you is required and based upon this plea as to what other sentence I shall impose, I do not know and I make no promises. These comments, Selikoff contends, represent an unconditional promise which must be specifically enforced. After the entry of the guilty pleas, the trial judge presided at the trial of Selikoff’s co-defendants. During this trial it became apparent to him" }, { "docid": "22922926", "title": "", "text": "and his wife signed on September 14, 1976, a confession of judgment for $2.5 million, and a document stating that the Bergmans: “ . . . hereby, assign to the O.S.P. [Office of Special Prosecutor] Nursing Home Restitution Fund, and to any nominee (hereafter referred to as the receiver) selected by the Special State Prosecutor, Charles J. Hynes, to act in this matter on behalf of the State of New York and said Fund all right, title, and interest held by us directly or indirectly, in all property, real and personal, wherever situated, this assignment being for the purpose of the liquidation, sale and disposal by the said receiver of said property as is necessary to provide funds to fully satisfy Bernard Bergman’s obligation to pay to the O.S.P. Nursing Home Restitution Fund the sum of two million, five hundred thousand dollars.” The document further obligated Bergman and his wife to “cooperate with, aid and assist the receiver, in whatever manner he shall request, in the sale, disposition and conversion to cash of our assets,” and specified that “[u]pon the payment of such sums [$2,500,000], the receiver shall return to us such of the assets assigned to him as are undisposed of.” The Bergman assets thus assigned for the purpose of satisfying the $2.5 million obligation included Bergman’s interests in numerous other nursing home and realty enterprises besides Park Crescent. Simultaneously with the execution of the plea agreement, confession of judgment, assignment and agreement to cooperate, Bergman executed a security agreement which confirms that the sole purpose of the other documents was to assure that the state’s judgment would be satisfied. On September 30, 1976, Hynes moved in the New York State Supreme Court pursuant to CPLR § 5528(a) for the appointment of a receiver “to sell . . . property and apply the proceeds therefrom to the satisfaction of the judgment rendered . against . . . Bernard Bergman . in favor of the judgment creditor, People of the State of New York, for the sum of Two Million Five Hundred Thousand Dollars, plus interest, plus the costs and" } ]

[ { "docid": "23091248", "title": "", "text": "of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate. 18 U.S.C. § 3580(a) (emphasis added). Atkinson contends that the district judge ignored the statutory directive to consider the financial condition of the defendant and, instead, simply ordered restitution of the undisputed amounts claimed by the banks in their victim impact statements. Arguing that the VWPA envisions a balancing of factors, Atkinson alleges that the district judge’s findings were inadequate. The third circuit has recently used its supervisory power to require district courts “to make specific findings as to the factual issues that are relevant to the application of the restitution provisions of the VWPA.” United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985). Believing that such fact finding would unnecessarily encumber a sentencing proceeding, we respectfully decline to follow the course taken by our third circuit colleagues. The plain language of section 3580(a) requires only that the district judge “consider” the listed factors; there is no requirement, as urged by defendant, that specific findings be made on each factor. Nor would specific findings on any factor other than the amount of the loss seem to be of much assistance in arriving at a particular dollar amount of restitution. Like other aspects of sentencing, restitution orders require an exercise of discretion within the legislative parameters provided for the court’s consideration, see United States v. Ciambrone, 602 F.Supp. 563, 566 (S.D.N.Y.1984), and this requires a delicate balancing of diverse, sometimes incomparable factors, some of which not only lack certainty but may indeed be based on mere probabilities, expectations, guesswork, even a “hunch”. In such a context, detailed findings on each statutory factor would be worse than useless; they would be misleading because they would not reflect the judgmental process actually traversed by the court. Therefore, the most a district judge should be required to do before imposing a sentence of restitution is to give consideration to all the material" } ]

[ { "docid": "11580610", "title": "", "text": "resolved by the court by a preponderance of the evidence.” 18 U.S.C. § 3664(e). Even though the statute explicitly does not require that the district court determine findings of fact each and every time it orders restitution, the VWPA does contemplate that factual disputes may arise (and most likely will arise) while the district court considers the government’s .request that restitution be provided for the victims of the defendant’s criminal activity. The Act provides a procedure by which to resolve those disputes, see 18 U.S.C. § 3664(d)(6), and requires that the resolution of any factual dispute be supported by a preponderance of the evidence. See 18 U.S.C. § 3664(e). In consideration of these statutory provisions, we conclude that the VWPA recognizes that specific findings of fact reflected in the record still are necessary at times and contemplates that district courts provide an explanation of their reasoning, supported by articulated findings of fact. In this circuit, we have issued mandates to district courts to provide sufficient explanation of their reasoning and to include findings of fact when entering an award of costs. See, e.g., Cengr v. Fusibond, 135 F.3d 445 (7th Cir.1998); Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 946 (7th Cir.1997) (noting that the district court’s order regarding costs “might have been more clear had [it] specifically itemized those costs and addressed the [plaintiffs] arguments”); Weihaupt v. American Med. Ass’n, 874 F.2d 419, 430-31 (7th Cir.1989) (remanding issue of costs for a hearing to determine whether the award of costs was reasonable in light of the district court’s failure to make any findings of fact). Unless we know why a district court included specific costs in an order granting restitution, we have no adequate basis upon which to review the decision. Gardner v. Southern Ry. Sys., 675 F.2d 949, 954 (7th Cir.1982). In United States v. Patterson, 837 F.2d 182 (5th Cir.1988), the Fifth Circuit concluded: The decision to assign reasons is committed to the sound discretion of the district court, guided by this singular inquiry— absent an assignment of its reasons, does the record contain sufficient" }, { "docid": "11621844", "title": "", "text": "explicitly require the court to assign reasons for its determination unless the court does not order restitution or orders only partial restitution. Id. at § 3579(a)(2). The circuits disagree as to whether district courts should be required to make specific findings of fact with respect to the § 3580(a) factors in those cases in which full restitution is ordered. Some circuits, in order to facilitate meaningful appellate review, have invoked their supervisory powers to require such fact finding. See United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987); United States v. Hill, 798 F.2d 402, 406-07 (10th Cir.1986); United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985). The Ninth Circuit, on the other hand, interprets the VWPA to itself require the trial court to make findings of fact whenever the defendant disputes the amount or type of restitution ordered. United States v. Cannizzaro, 871 F.2d 809, 810 n. 2 (9th Cir.1989) (interpreting 18 U.S.C. § 3664(d)). Other circuits, however, have held that the statute itself does not require trial courts to make specific findings of fact before ordering restitution and have declined to use their supervisory powers to order courts to make such findings. See United States v. Purther, 823 F.2d 965, 969-70 (6th Cir.1987) (holding that under § 3664(d), when the defendant offers no evidence with respect to factors he claims are disputed, the court is not required to delay its decision by making findings of fact); United States v. Atkinson, 788 F.2d 900, 903 (2d Cir.1986) (holding that the VWPA does not require fact finding). The Fifth Circuit has adopted still another course by holding that although the VWPA does not require a trial court to make findings of fact, the court should do so if the record otherwise does not provide an adequate basis for appellate review. United States v. Patterson, 837 F.2d 182, 183-84 (5th Cir.1988). We agree with the courts that have declined to adopt a rigid rule requiring district courts to make findings of fact whenever they impose an order of restitution under the VWPA. The plain language of §§ 3579(a) and" }, { "docid": "11580612", "title": "", "text": "data for the appellate court to perform its mandated review? If the record provides an adequate basis for that review, the court need not assign specific reasons for its decision to order full [or partial] restitution. If the ■ record is insufficient, reasons must be assigned. 837 F.2d at 183-84. We find this reasoning persuasive and appropriate in this circumstance. Even though the district court is not required by statute to make specific findings of fact, if the record does not sufficiently support its conclusions or clarify its reasoning, then we ask that the -court provides us with that information, including its specific findings of fact, to facilitate our review. In reviewing the record, we find that there is an inadequate explanation and insufficient reasoning as to why the district court accepted, on their face, the DEA’s invoice and, except for the reduction of replacement costs, Meriter’s invoice, without requiring any further evidence or proof that all costs incurred were directly related to Menza’s convictions. In the absence of any record to reflect the court’s factual findings regarding the victims’ actual losses which directly resulted from the offenses of conviction, we ' cannot determine whether the district court abused its discretion in awarding restitution in the amount of $15,830.42. Although the district court reduced Meriter’s replacement costs by one-half to . account for ordinary wear and tear, there is not sufficient evidence to support, a finding that this was or was not an abuse of discretion, particularly when there are clear inconsistencies in the record. This lack of support requires us to remand the case to the district court for further consideration and proceedings consis-. tent with this opinion. On remand, the court should determine several factors. First, the restitution order must directly relate to the crimes charged in the information. Second, the government must provide the district court with more than just the general invoices submitted by the DEA and Meriter, ostensibly identifying the amount of their losses. The government must provide sufficient explanations (supported by evidence reflected in the record) as to how these invoiced losses directly relate" }, { "docid": "23391895", "title": "", "text": "such other factors as the court deems appropriate. 18 U.S.C. § 3664(a). Arvanitis contends that because consideration of these factors is mandatory, the district court should have made findings of fact on the record about them. Although the VWPA does require the district court to make findings on the record, the requirement is applicable only when the court refuses to order full restitution. See 18 U.S.C. § 3663(a)(2). United States v. Mahoney, 859 F.2d 47, 49-50 (7th Cir.1988); United States v. Gomer, 764 F.2d 1221, 1223 (7th Cir.1985). See also United States v. Patterson, 837 F.2d 182, 183 (5th Cir.1988); United States v. Purther, 823 F.2d 965, 969 (6th Cir.1987); United States v. Atkinson, 788 F.2d 900, 902 (2nd Cir.1986). But see United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987); United States v. Hill, 798 F.2d 402, 406-07 (10th Cir.1986); United States v. Palma, 760 F.2d 475, 480 (3rd Cir.1986). Here, the court ordered full restitution and thus was not required to make explicit findings of fact regarding the statutory factors. Arvanitis next challenges the merits of the district court’s restitution order. As he is attacking the court’s decision to order restitution and the amount of restitution ordered, Arvanitis must establish that in making these determinations the court abused its discretion. United States v. Studley, 892 F.2d 518, 531 (7th Cir.1989). Despite this deferential standard of review, we have held that the district court must consider the factors listed in § 3664(a) in making its decision. United States v. Gomer, 764 F.2d 1221, 1223. Thus the record must reflect that the court had information about the defendants’ and their dependents’ financial resources and needs at its disposal. United States v. Patterson, 837 F.2d at 183; United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.1986). Pursuant to Fed.R.Crim.P. 32(c)(2)(A) and 18 U.S.C. § 3664(b), the court ordered the preparation of pre-sentence investigation reports containing financial information about the defendants and their dependents. Included in the report on Arvanitis was a statement of net worth, total income, total expenses and net monthly cash flow. It covered Arvanitis’ work history" }, { "docid": "11580611", "title": "", "text": "when entering an award of costs. See, e.g., Cengr v. Fusibond, 135 F.3d 445 (7th Cir.1998); Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 946 (7th Cir.1997) (noting that the district court’s order regarding costs “might have been more clear had [it] specifically itemized those costs and addressed the [plaintiffs] arguments”); Weihaupt v. American Med. Ass’n, 874 F.2d 419, 430-31 (7th Cir.1989) (remanding issue of costs for a hearing to determine whether the award of costs was reasonable in light of the district court’s failure to make any findings of fact). Unless we know why a district court included specific costs in an order granting restitution, we have no adequate basis upon which to review the decision. Gardner v. Southern Ry. Sys., 675 F.2d 949, 954 (7th Cir.1982). In United States v. Patterson, 837 F.2d 182 (5th Cir.1988), the Fifth Circuit concluded: The decision to assign reasons is committed to the sound discretion of the district court, guided by this singular inquiry— absent an assignment of its reasons, does the record contain sufficient data for the appellate court to perform its mandated review? If the record provides an adequate basis for that review, the court need not assign specific reasons for its decision to order full [or partial] restitution. If the ■ record is insufficient, reasons must be assigned. 837 F.2d at 183-84. We find this reasoning persuasive and appropriate in this circumstance. Even though the district court is not required by statute to make specific findings of fact, if the record does not sufficiently support its conclusions or clarify its reasoning, then we ask that the -court provides us with that information, including its specific findings of fact, to facilitate our review. In reviewing the record, we find that there is an inadequate explanation and insufficient reasoning as to why the district court accepted, on their face, the DEA’s invoice and, except for the reduction of replacement costs, Meriter’s invoice, without requiring any further evidence or proof that all costs incurred were directly related to Menza’s convictions. In the absence of any record to reflect the court’s" }, { "docid": "11621843", "title": "", "text": "Bank’s loss or that the loss was caused by the defendant’s actions; (3) Williams and Upton were not “victims” within the meaning of the VWPA and therefore were not entitled to restitution; and (4) the settlement of the state court civil proceeding against Hairston precluded an order of restitution. We will address each of these issues in turn. A. Necessity of Making Findings of Fact Hairston contends that because the district court failed to make specific findings of fact identifying the bases for its restitution order, the order must be reversed. We disagree. Section 3580(a) of the VWPA requires the district court to consider certain factors in determining whether to order restitution, including the amount of loss sustained by any victim, the financial resources of the defendant, the financial needs and earning ability of the defendant, and other appropriate factors. 18 U.S.C. § 3580(a). If the parties dispute the proper amount or type of restitution, the court must resolve the dispute by a preponderance of the evidence. Id. at § 3580(d). The VWPA does not explicitly require the court to assign reasons for its determination unless the court does not order restitution or orders only partial restitution. Id. at § 3579(a)(2). The circuits disagree as to whether district courts should be required to make specific findings of fact with respect to the § 3580(a) factors in those cases in which full restitution is ordered. Some circuits, in order to facilitate meaningful appellate review, have invoked their supervisory powers to require such fact finding. See United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987); United States v. Hill, 798 F.2d 402, 406-07 (10th Cir.1986); United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985). The Ninth Circuit, on the other hand, interprets the VWPA to itself require the trial court to make findings of fact whenever the defendant disputes the amount or type of restitution ordered. United States v. Cannizzaro, 871 F.2d 809, 810 n. 2 (9th Cir.1989) (interpreting 18 U.S.C. § 3664(d)). Other circuits, however, have held that the statute itself does not require trial courts to make specific" }, { "docid": "925448", "title": "", "text": "We remand the case for imposition of a fine in accordance with this opinion. E. The Restitution St. Gelais alleges that the district court erred by not specifically articulating its findings regarding the mandatory factors it considered when imposing restitution. We review the district court’s award of restitution for an abuse of discretion. United States v. Ryan, 874 F.2d 1052 (5th Cir.1989). We find that the district court neither abused its discretion in choosing not to articulate its findings nor in determining the amount of restitution. In determining the amount of restitution the district court shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate. 18 U.S.C. § 3664. St. Gelais contends that the district court’s failure to articulate its findings resulting from consideration of each of these factors mandates a remand. The Fifth Circuit, however, does not require specific findings regarding the restitution factors in every instance: “The decision to assign reasons is committed to the sound discretion of the district court, guided by this singular inquiry — absent an assignment of reasons, does the record contain sufficient data for the appellate court to perform its mandated review? If the record provides an adequate basis for that review, the court need not assign specific reasons for its decision to order full restitution. If the record is insufficient, reasons must be assigned.” Ryan, 874 F.2d at 1053. Thus, we examine the record in this case and find that it provides an adequate basis for the district court’s decision to order full restitution. The district court adopted the finding in the presentence report that the amount of the victims’ loss was $12,120,-244.29. St. Gelais objected to the amount of loss alleged in the presentence report, claiming that the most the victims could have lost was $3.5 million. The government argued that the total amount of loss was $13,215,024. The government carries the burden of proving the" }, { "docid": "925449", "title": "", "text": "findings regarding the restitution factors in every instance: “The decision to assign reasons is committed to the sound discretion of the district court, guided by this singular inquiry — absent an assignment of reasons, does the record contain sufficient data for the appellate court to perform its mandated review? If the record provides an adequate basis for that review, the court need not assign specific reasons for its decision to order full restitution. If the record is insufficient, reasons must be assigned.” Ryan, 874 F.2d at 1053. Thus, we examine the record in this case and find that it provides an adequate basis for the district court’s decision to order full restitution. The district court adopted the finding in the presentence report that the amount of the victims’ loss was $12,120,-244.29. St. Gelais objected to the amount of loss alleged in the presentence report, claiming that the most the victims could have lost was $3.5 million. The government argued that the total amount of loss was $13,215,024. The government carries the burden of proving the amount of victims’ loss under 18 U.S.C. § 3664, and the district court resolves any dispute as to the proper amount of restitution by a preponderance of the evidence. 18 U.S.C. § 3664(d). The district court did not abuse its discretion in adopting the presentence report’s finding that the total loss amounted to $12,120,244.29. In addition to considering the amount of the victims’ loss, the district court must consider the financial resources of the defendant, and the financial needs and earning ability of the defendant. The district court clearly attempted to consider these factors, but St. Gelais refused to provide the court with his personal financial state ment. When the court questioned St. Ge-lais’ attorney about this fact at sentencing, his attorney stated that St. Gelais would soon be examined by creditors in a bankruptcy proceeding and that he would provide that information to the court when it was available. (R., Vol. 29 at 16). The court had no choice but to impose full restitution because by statute, the burden of demonstrating the financial resources" }, { "docid": "22597802", "title": "", "text": "restitution, and that the failure to do so was an abuse of discretion. This court has recently held that a district court is required to make \"factual determinations” under the VWPA and enter a specific order of restitution based on such facts. United States v. Weir, 861 F.2d 542, 546 (9th Cir.1988). After citing to a Tenth Circuit case, United States v. Watchman, 749 F.2d 616, 618 (10th Cir.1984), the Weir court sketched only a bare outline of the factfinding process that is required before imposition of a VWPA restitution order. The object, of course, is to make an order of restitution that is complete and accurate, and one that has a sound basis in fact. Weir, 861 F.2d at 546. Other courts that have considered this issue have held that the district court is required to make clear and specific findings of fact before entering a restitution order. See, e.g., Bruchey, 810 F.2d at 459; United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985); and United States v. Durham, 755 F.2d 511, 514-15 (6th Cir.1985). These courts presumably envision some sort of formal adversarial presentation of evidence, after which the court can resolve factual disputes and enter findings accordingly. Prior to Weir, however, this court held that neither the VWPA nor Fed.R.Crim.P. 32 requires the district court to hold a full-blown evidentiary hearing on the issue of restitution. United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 93, 88 L.Ed.2d 76 (1985); see also United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert denied, 479 U.S. 963, 107 S.Ct. 462, 93 L.Ed.2d 407 (1986). More recently, we have held that the district court is not required to discuss on the record the factors Congress has listed in section 3664(a). Grewal, 825 F.2d at 223. There is nothing in the text or legislative history of the VWPA to indicate that Congress intended the sentencing hearing to be transformed into a second trial on the issue of restitution. If anything, congressional intent appears to have been quite the contrary. See," }, { "docid": "22599292", "title": "", "text": "a sentencing court must make a factual finding keying the statutory factors to the type and manner of restitution ordered; it must find that the manner of restitution ordered is feasible. Cf. United States v. Bailey, 975 F.2d 1028, 1031-32 (4th Cir.1992) (stating that, under predecessor to MVRA, district court must make factual finding keying defendant’s financial condition to the restitution order and determining that the defendant can feasibly comply with the order). Such fact-finding requirements are necessary to facilitate effective appellate review. See United States v. Molen, 9 F.3d 1084, 1086 (4th Cir.1993); United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987). A court may comply with these requirements by “announcing its findings on the record or by adopting adequate proposed findings contained within a presentence report.” United States v. Blake, 81 F.3d 498, 505 (4th Cir.1996). Our review of the record indicates that the district court did not make all of the necessary factual findings. The court adopted the proposed findings of the pre-sentence report (PSR), which contained a section concerning Dawkins’ financial condition. The PSR adequately described Dawkins’ financial resources and assets, see 18 U.S.C.A. § 3664(f)(2)(A), and his projected earnings, see id. § 3664(f)(2)(B). Although the PSR did not offer a tremendous breadth of information regarding Dawkins’ financial obligations, it did note that Dawkins owed no money on his vehicles or the home in which he lived and that he had no financial dependents; adopting these facts adequately discharged the statutory obligation of the district court. See id. § 3664(f)(2)(C). However, the record is devoid of any factual finding that keys Dawkins’ financial situation to the restitution schedule ordered or finds that the order is feasible. See Bailey, 975 F.2d at 1031-32. We therefore instruct the district court, when it reconsiders the restitution order on remand, to make such a finding on the record. See Blake, 81 F.3d at 505. D. Dawkins argues that the district court illegally delegated its judicial authority by allowing the probation office to adjust the restitution payment schedule after considering Dawkins’ economic status. A district court may not delegate to" }, { "docid": "23292458", "title": "", "text": "release from prison. Because I do not believe that the record supports either the majority’s holding or the district court’s finding, I would reverse the district court on this ground. In Part V-A, the majority holds that the district court under-valued the collateral held by Smith’s institutional victims when it calculated the total loss attributable to his criminal conduct. The majority thus concludes that the court overstated the amount properly compensable by restitution to this extent. Because I believe that the majority mischaracterizes the nature of the victims’ loss and because I believe that the district court’s valuation of the collateral was proper, I would affirm the district court on this ground. I A The Victim and Witness Protection Act of 1982 (“VWPA”) provides that: The court, in determining whether to order restitution under section [3663] of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate. 18 U.S.C. § 3664(a) (1988) (emphasis added). In determining whether district courts have satisfied this obligation, at least three of our sister circuits “have invoked their supervisory power to require district courts to make specific factfindings” on the considerations identified in this provision. United States v. Bruchey, 810 F.2d 456, 458-59 (4th Cir.1987) (citing United States v. Hill, 798 F.2d 402, 406-07 (10th Cir.1986), and United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985)). We, however, have rejected their lead. In United States v. Cannizzaro, 871 F.2d 809 (9th Cir.), cert. denied, 493 U.S. 895, 110 S.Ct. 245, 107 L.Ed.2d 195 (1989), we noted that “[t]here is no textual support for [the] contention that the district court must make findings of fact concerning [the defendant’s] financial condition before imposing restitution [under the VWPA].” Id. at 810. We explained: There is a material difference between requiring a district court to make findings of fact and requiring it to consider certain" }, { "docid": "6123952", "title": "", "text": "only $7 million, and the opinion’s assessment of the evidence is inconsistent with such a proposition. Barnette also proffers a statutory argument for his contention that the sentencing judge determined the Government’s total loss to be only $7 million. As Barnette notes, the VWPA requires a judge who orders partial restitution under the Act to explain on the record her reasons for not providing full restitution. 18 U.S.C.A. § 3663(a)(2) (1985), repealed by Pub.L. 99-646, § 8(b) (1986), re-codified at 18 U.S.C.A. § 3553(c) (Supp. 1993); see also United States v. Hairston, 888 F.2d 1349, 1352 (11th Cir.1989) (“The VWPA does not explicitly require the court to assign reasons for its determination unless the court does not order restitution or orders only pai’tial restitution.”). Barnette asserts that the sentencing judge in his case did not offer such an explanation and therefore must have intended to award full restitution. Any other reading, he suggests, would require us to find that the sentencing judge violated her statutory duties. Barnette’s VWPA argument in unpersuasive. First, the VWPA does not clearly control this case. The sentencing judge imposed five concurrent $7 million restitution orders, of which we upheld four on direct appeal. See Barnette I, 800 F.2d at 1570-71. Three of those four restitution orders were for crimes that occurred before the effective date of the VWPA, and were therefore not governed by its provisions. As we have already implicitly held, see id. at 1570, those three restitution orders were each made pursuant to 18 U.S.C.A. § 3651 (1985 & Supp. 1993), repealed by Pub.L. 98^473, Title II, § 235(a)(1), 98 Stat. 2031 (Oct. 12 1984) (effective Nov. 1, 1987). Section 3651 did not require a judge to explain a less-than-full restitution order. Therefore, Barnette’s statutory argument is inapposite with respect to three of the four concurrent restitution orders. Although the remaining restitution order was subject to the VWPA, that might not have been apparent prior to our holding on appeal. See Barnette, 800 F.2d at 1571. At sentencing, the Government mistakenly stated that Barnette’s crimes had been completed before the VWPA took effect." }, { "docid": "23292459", "title": "", "text": "the defendant and the defendant’s dependents, and such other factors as the court deems appropriate. 18 U.S.C. § 3664(a) (1988) (emphasis added). In determining whether district courts have satisfied this obligation, at least three of our sister circuits “have invoked their supervisory power to require district courts to make specific factfindings” on the considerations identified in this provision. United States v. Bruchey, 810 F.2d 456, 458-59 (4th Cir.1987) (citing United States v. Hill, 798 F.2d 402, 406-07 (10th Cir.1986), and United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985)). We, however, have rejected their lead. In United States v. Cannizzaro, 871 F.2d 809 (9th Cir.), cert. denied, 493 U.S. 895, 110 S.Ct. 245, 107 L.Ed.2d 195 (1989), we noted that “[t]here is no textual support for [the] contention that the district court must make findings of fact concerning [the defendant’s] financial condition before imposing restitution [under the VWPA].” Id. at 810. We explained: There is a material difference between requiring a district court to make findings of fact and requiring it to consider certain factors. Findings of fact can only be made on the basis of a formal adversarial record; the parties must be permitted to present testimonial and documentary evidence; one party or the other must carry the burden of proof as to each contested issue. For example, where the amount or type of restitution is disputed, the government must demonstrate, by a preponderance of the evidence, the loss sustained by the victim; the defendant carries the burden, again by a preponderance of the evidence, of demonstrating his financial resources (or lack thereof), as well as the financial needs of his dependents. 18 U.S.C. § 3664(d). On the other hand, requiring the district court to consider certain factors grants the court broad discretion to determine the type and amount of evidence it deems relevant. We have no authority to modify the statutory scheme by narrowing that discretion. “The test is whether the district court complied with the applicable [statute]. If the [statute] do[es] not require a detailed explanation of the court’s decision, the district court need not volunteer" }, { "docid": "22161095", "title": "", "text": "$889,962 amount of restitution recommended in the PSI and sought by the government. See Jones, 289 F.3d at 1265. Because McNair raises this issue for the first time on appeal, we review it only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). We may not correct an error the appellant failed to raise in the district court unless there is: “ ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002)). If the preceding three conditions are met, we may exercise discretion to correct a forfeited error, but only if “(4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation marks omitted). McNair has not shown plain error for several reasons. First, “[district courts are not obliged to make explicit factual findings of a defendant’s ability to pay restitution if the record provides an adequate basis for review.” United States v. Dabbs, 134 F.3d 1071, 1084 (11th Cir. 1998) (quoting Twitty, 107 F.3d at 1493); accord United States v. Fuentes, 107 F.3d 1515, 1529 n. 27 (11th Cir.1997); United States v. Remillong, 55 F.3d 572, 574-78 (11th Cir.1995); United States v. Hairston, 888 F.2d 1349, 1353 (11th Cir.1989) (stating, “[i]f the record provides an adequate basis for ... review, the court need not assign specific reasons for its decision to order full restitution. If the record is insufficient, reasons must be assigned.”) (quotation marks omitted). “ ‘In order to warrant a reversal of the restitution order, the challenging party must show that the record is devoid of any evidence that the defendant is able to satisfy the restitution order.’” Dabbs, 134 F.3d at 1084 (quoting United States v. Davis, 111 F.3d 459, 463 (11th Cir.1997)). However, “we will not uphold the district court’s exercise of discretion if the record is devoid of any evidence that the defendant is able to satisfy the restitution order.” Remillong, 55 F.3d at 574. Second, the record is not devoid of any evidence of" }, { "docid": "23391894", "title": "", "text": "with the knowledge that his attorney’s prediction was wrong, Arvanitis cannot now claim prejudice. Worthen v. Meachum, 842 F.2d 1179 (10th Cir.1988). See also United States v. Billington, 844 F.2d 445, 450 (7th Cir.1988). 2. Restitution Arvanitis contends that the district court erred because it did not assign reasons for ordering full restitution. He also contends that the district court abused its discretion by failing to consider certain mandatory, and in his view, mitigating, factors. We reject both arguments, but find that the order must be remanded to the district court to recalculate the amount of loss suffered by one of the insurance companies defrauded by the enterprise. Arvanitis’ first challenge is procedural. Under the VWPA, a district court may order restitution only after considering the following factors: (1) the amount of loss sustained by any victim as a result of the offense, (2) the financial resources of the defendant, (3) the financial needs of the defendant and the defendant’s dependents, (4) the financial earning ability of the defendant and the defendant’s dependents and (5) such other factors as the court deems appropriate. 18 U.S.C. § 3664(a). Arvanitis contends that because consideration of these factors is mandatory, the district court should have made findings of fact on the record about them. Although the VWPA does require the district court to make findings on the record, the requirement is applicable only when the court refuses to order full restitution. See 18 U.S.C. § 3663(a)(2). United States v. Mahoney, 859 F.2d 47, 49-50 (7th Cir.1988); United States v. Gomer, 764 F.2d 1221, 1223 (7th Cir.1985). See also United States v. Patterson, 837 F.2d 182, 183 (5th Cir.1988); United States v. Purther, 823 F.2d 965, 969 (6th Cir.1987); United States v. Atkinson, 788 F.2d 900, 902 (2nd Cir.1986). But see United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987); United States v. Hill, 798 F.2d 402, 406-07 (10th Cir.1986); United States v. Palma, 760 F.2d 475, 480 (3rd Cir.1986). Here, the court ordered full restitution and thus was not required to make explicit findings of fact regarding the statutory factors. Arvanitis next" }, { "docid": "11621846", "title": "", "text": "3580(d) required only that the district court “consider” the listed factors and resolve disputes by a preponderance of the evidence. There was no requirement that specific findings be made on each factor. Moreover, we agree with the Second Circuit that such fact finding might unnecessarily encumber sentencing proceedings. See Atkinson, 788 F.2d at 902. Realizing, however, that this court must be able to perform a proper review of the district court’s determination, we adopt the “middle course” taken by the Fifth Circuit in Patterson: The decision to assign reasons is committed to the sound discretion of the district court, guided by this singular inquiry— absent an assignment of its reasons, does the record contain sufficient data for the appellate court to perform its mandated review? If the record provides an adequate basis for that review, the court need not assign specific reasons for its decision to order full restitution. If the record is insufficient, reasons must be assigned. Patterson, 837 F.2d at 183-84. We believe this standard provides the appropriate amount of flexibility to district courts while at the same time protecting the defendant’s right not to be sentenced on the basis of invalid premises or inaccurate information. See United States v. Satterfield, 743 F.2d 827, 840 (11th Cir.1984), cert. denied, 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985). In the instant case, the record provides an adequate basis upon which to review the district court’s restitution order. The proof at trial established that the defendant fraudulently misapplied funds in the amounts of $120,000, $33,000, and $17,000. At the sentencing hearing the district court specifically stated to the attorney for the government, “The question would be, do I have sufficient evidence to determine what the amounts [of the victims’ losses] are?” At that point, the government attorney directed the court’s attention to a letter written by Harrill Dawkins, attorney for the Bank, which the government had introduced into the record as evidence of the amount of loss suffered by the Bank. The letter sets out the amount of actual loss suffered by the Bank as a result of" }, { "docid": "22599291", "title": "", "text": "paid, in consideration of — ■ (A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled; (B) projected earnings and other income of the defendant; and (C) any financial obligations of the defendant; including obligations to dependents. 18 U.S.C.A. § 3664(f)(2). Dawkins argues that the district court did not satisfy its statutory obligation to specify the manner and schedule by which he was to pay restitution because the court ordered the entire restitution amount immediately due. We, however, consider the district court to have effectively discharged its responsibility to set a payment schedule when it instructed that if Dawkins were unable to pay the full restitution amount immediately, he could pay $200 per month beginning 60 days after his release. We therefore reject this assignment of error. Dawkins also asserts that the district court failed to make certain factual findings. The MVRA clearly requires a sentencing court to consider the factors listed in 18 U.S.C.A. § 3664(f)(2) when determining how restitution is to be paid. Additionally, a sentencing court must make a factual finding keying the statutory factors to the type and manner of restitution ordered; it must find that the manner of restitution ordered is feasible. Cf. United States v. Bailey, 975 F.2d 1028, 1031-32 (4th Cir.1992) (stating that, under predecessor to MVRA, district court must make factual finding keying defendant’s financial condition to the restitution order and determining that the defendant can feasibly comply with the order). Such fact-finding requirements are necessary to facilitate effective appellate review. See United States v. Molen, 9 F.3d 1084, 1086 (4th Cir.1993); United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987). A court may comply with these requirements by “announcing its findings on the record or by adopting adequate proposed findings contained within a presentence report.” United States v. Blake, 81 F.3d 498, 505 (4th Cir.1996). Our review of the record indicates that the district court did not make all of the necessary factual findings. The court adopted the proposed findings of the pre-sentence report (PSR), which contained a section concerning Dawkins’" }, { "docid": "23276243", "title": "", "text": "a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate. Since Congress has seen fit to require the several determinations of § 3580(a), we are in turn obligated to insure that they are made. Effective appellate review, however, is difficult unless the trial court makes explicit fact findings on these statutory factors. For that reason, we join those courts which have invoked their supervisory power to require district courts to make specific fact findings on those matters relevant to application of the VWPA. See United States v. Hill, 798 F.2d 402, 406-07 (10th Cir.1986); United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985). Since no fact findings accompanied either the September 20 restitutionary order or the modified order of April 10, we must remand. A brief review of the necessary factual determinations omitted here will underscore the need for our requirement. First, § 3580(a) requires a calculation of the victim’s loss. There was no dispute here that the defendant embezzled $50,000. However, § 3579(e)(1) explicitly provides that the court cannot impose restitution for a loss “for which the victim has received or is to receive compensation,” though the court may order restitution to an insurer or third party who has already compensated the victim. The Presentence Report indicates that Magnet is insured with a $25,000 deductible; it also indicates that “the bank has yet to make a claim hoping that the defendant would make restitution.” The sentencing hearings reveal no discussion of the insurance policy, and the district court should make a specific inquiry, and offer-findings of fact, to insure compliance with § 3579(e)(1). See United States v. Durham, 755 F.2d 511, 514-15 (6th Cir.1985). The trial court should also make clear findings of fact on the defendant’s resources, and the financial needs and earning ability of the defendant and the defendant’s dependents. Such findings of fact should be keyed to the specific type and amount of restitution ordered. The record here, it is true, reveals" }, { "docid": "22161096", "title": "", "text": "1071, 1084 (11th Cir. 1998) (quoting Twitty, 107 F.3d at 1493); accord United States v. Fuentes, 107 F.3d 1515, 1529 n. 27 (11th Cir.1997); United States v. Remillong, 55 F.3d 572, 574-78 (11th Cir.1995); United States v. Hairston, 888 F.2d 1349, 1353 (11th Cir.1989) (stating, “[i]f the record provides an adequate basis for ... review, the court need not assign specific reasons for its decision to order full restitution. If the record is insufficient, reasons must be assigned.”) (quotation marks omitted). “ ‘In order to warrant a reversal of the restitution order, the challenging party must show that the record is devoid of any evidence that the defendant is able to satisfy the restitution order.’” Dabbs, 134 F.3d at 1084 (quoting United States v. Davis, 111 F.3d 459, 463 (11th Cir.1997)). However, “we will not uphold the district court’s exercise of discretion if the record is devoid of any evidence that the defendant is able to satisfy the restitution order.” Remillong, 55 F.3d at 574. Second, the record is not devoid of any evidence of McNair’s ability to satisfy the restitution order. The PSI set forth McNair’s finances in detail, the district court said it had reviewed that financial information, and McNair did not contest the facts as to his finances. There is no dispute that McNair has equity of $379,455 in his studio building, which was built in part using the bribe money. The studio value could reduce the restitution from $851,927 to $472,472. In addition, McNair has a net cash flow of $1,741 per month, which is about the size of his monthly Jefferson County retirement check of $1,794. That retirement check alone permits McNair to pay $21,528 annually toward the restitution. Five years of $21,528 payments annually would equal over $100,000 in restitution. The unique problem in this case, however, is that McNair is now 84 years old. Although the PSI states McNair “reports no current medical problems or prescription medications taken on a regular basis,” it would take McNair 21.94 years at $21,528 per year to pay the remaining $472,472 left in restitution. Therefore, the record" }, { "docid": "11621845", "title": "", "text": "findings of fact before ordering restitution and have declined to use their supervisory powers to order courts to make such findings. See United States v. Purther, 823 F.2d 965, 969-70 (6th Cir.1987) (holding that under § 3664(d), when the defendant offers no evidence with respect to factors he claims are disputed, the court is not required to delay its decision by making findings of fact); United States v. Atkinson, 788 F.2d 900, 903 (2d Cir.1986) (holding that the VWPA does not require fact finding). The Fifth Circuit has adopted still another course by holding that although the VWPA does not require a trial court to make findings of fact, the court should do so if the record otherwise does not provide an adequate basis for appellate review. United States v. Patterson, 837 F.2d 182, 183-84 (5th Cir.1988). We agree with the courts that have declined to adopt a rigid rule requiring district courts to make findings of fact whenever they impose an order of restitution under the VWPA. The plain language of §§ 3579(a) and 3580(d) required only that the district court “consider” the listed factors and resolve disputes by a preponderance of the evidence. There was no requirement that specific findings be made on each factor. Moreover, we agree with the Second Circuit that such fact finding might unnecessarily encumber sentencing proceedings. See Atkinson, 788 F.2d at 902. Realizing, however, that this court must be able to perform a proper review of the district court’s determination, we adopt the “middle course” taken by the Fifth Circuit in Patterson: The decision to assign reasons is committed to the sound discretion of the district court, guided by this singular inquiry— absent an assignment of its reasons, does the record contain sufficient data for the appellate court to perform its mandated review? If the record provides an adequate basis for that review, the court need not assign specific reasons for its decision to order full restitution. If the record is insufficient, reasons must be assigned. Patterson, 837 F.2d at 183-84. We believe this standard provides the appropriate amount of flexibility to district" } ]

[ { "docid": "12006148", "title": "", "text": "before the F.E. P.C. at this time. Plaintiff merely contends that the Illinois Department of Labor told him that the release would not affect claims other than the wage claim which he was then settling. “Plaintiff has no right to rely on the advice of a third party to the prejudice of defendant. If the defendant had misled him or otherwise practiced fraud or duress on him, he might have a case. But absent such circumstances, he cannot be allowed to set aside a general release every time he or his lawyer files a new lawsuit against the released party. Lawrence v. Muter, 171 F.2d 380 (7th Cir. 1948).” Plaintiff argued that he had a right to rely on the advice of the Wage Claim Division and it was reasonable for him to do so, that the cheek represented only wages due and was not intended to compensate him for his civil rights claims, and that there was no intention on his part that the release be effective generally. Consequently, under Illinois law the release would not bar the 'instant action. II Federal Rule of Civil Procedure 8(c) provides in pertinent part that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . release . . . and any other matter constituting an avoidance or affirmative defense.” Here, the company, subsequent to answer, supported a motion for summary judgment by raising the affirmative defense of release by affidavits, which defense was not raised in its answer, In Roe v. Sears, Roebuck & Co., 132 F.2d 829 (7th Cir. 1943), where defendant answered, then subsequently set up the defense of statute of limitations for the first time by way of affidavits in support of a motion for summary judgment, the court set forth the principle applicable in this Court as follows : “When «defendant moved for summary judgment it had filed an answer, the legal effect of which was a waiver of its defense of the statute of limitations. It could not, therefore, unless relieved from, its default, revive the defense it had waived. We need not" } ]

[ { "docid": "16542039", "title": "", "text": "claimed were due. B. District Court Proceedings The Funds brought suit against A & C and Mr. Clark to recover the delinquent contributions and hired an auditing firm to determine how much A & C owed. Count I of the Funds’ complaint sought recovery of the contributions that A & C owed the Funds. In Count II, the Funds — as the designated collection agents of the Union' — sought to recover the dues that A & C owed the Union. The following details of the proceedings before the district court are relevant to the determination of whether the Funds’ claims on appeal are procedurally barred. The Funds timely filed a motion for summary judgment. In that motion, it submitted that ERISA entitles the Funds to accept a contract between employers and unions without regard to any oral understandings between employers and unions that conflict with the contract’s terms. The court, for reasons undisclosed by the record, declined to rule on the motion. The Funds thereafter filed a motion to convert the summary judgment motion into a motion in limine to exclude evidence relating to any contract formation defense or defenses based on oral side agreements between A & C and the Union. The court denied the motion. The Funds then filed a motion in limine, accompanied by a supporting brief, in which they again requested exclusion of any evidence relating to side agreements. They submitted that our opinion in Central States, Southeast & Southwest Areas Pension Fund v. Gerber Truck Service, Inc., 870 F.2d 1148 (7th Cir.1989) (en banc), rendered irrelevant any evidence relating to the existence of oral understandings between A & C and the Union that modified the terms of the CBA. In their reply brief to A & C’s response to their motion in limine, the Funds specifically contended that Gerber Truck foreclosed the defenses of fraud in the inducement and fraud in the execution and that, even if fraud in the execution remained a viable defense to a pension fund’s efforts to collect delinquent contributions, A & C had not made out the defense. The" }, { "docid": "1700218", "title": "", "text": "party may preserve matters not properly pleaded by fully presenting and arguing the issue before the trial court. DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334 (7th Cir.1987). Second, when the district court denied the defendants’ motion for summary judgment, for all intents and purposes the case was over. The \"facts were not in dispute. And the district court identified no missing fact or disputed inference. Based on the court’s understanding of the law, once it denied the defendants’ motions, it was a certainty that the plaintiff had won. Third, and most importantly, the district court did not believe that the defendants had waived any arguments. When ruling on Glass’ motion, the court adopted its previous findings of fact from the earlier ruling and considered all of the defendants’ evidence in the record. See Rule 56(c) (court must consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits”). In granting Glass’ motion for summary judgment, the court found that There is no evidence submitted by defendants in support of their earlier motion for summary judgment or in opposition to plaintiffs motion for summary judgment that supports a conclusion that their interest in promoting the efficiency of the performance of public services outweighs the interests of plaintiff in commenting on matters of public concern. In fact, the court was under an obligation to look at the entire record (as it did), especially the materials which accompanied the defendants’ previous motion for summary judgment. Cooper, 969 F.2d at 371; Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 930-32 (1st Cir.1983) (and cases cited); Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653, 656 & n. 3 (5th Cir.1979); E.E.O.C. v. Clay County Rural Telephone, Inc., 694 F.Supp. 563, 566 (S.D.Ind.1988). As compared to these cited cases, in this case the defendants’ position is even stronger because they notified the court of their evidence (and the Pickering argument) in their own motion for summary judgment. Fourth, this is not a case where Glass could be surprised by the arguments that the defendants wish examined." }, { "docid": "22395832", "title": "", "text": "motion for alteration or amendment of judgment under Rule 59 suspends the finality of the judgment and therefore stays the time for appeal until disposition of the motion. Fed. R.App.P. 4(a)(4); see Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986); see also Wikoff v. Vanderveld, 897 F.2d 232, 236 (7th Cir.1990). The district court then amended the amount of damages awarded in the original judgment by increasing the amount of the interest award and reducing the award of attorneys’ fees. Lee filed a timely notice of appeal from the amended judgment order. The district court had diversity jurisdiction pursuant to 28 U.S.C. § 1332 and this court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s decision to grant summary judgment and apply the same standard as that employed by the district court. Panozzo v. Rhoads, 905 F.2d 135, 137 (7th Cir.1990). Therefore we will affirm the district court’s judgment only if there is no genuine issue of material fact and Bank Leumi is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987). Lee first argues that summary judgment was improperly granted because there was a genuine issue of material fact concerning the continued existence of the Guaranty. Lee contends, for the first time on appeal, that the Guaranty terminated prior to the issuance of the letters of credit due to the payment of the original underlying indebtedness. However, we need not reach the merits of this argument. The Federal Rules of Civil Procedure require affirmative defenses to be specifically pleaded. Fed.R.Civ.P. 8(c). Rule 8(c) provides that a party must “set forth affirmatively” the defenses of “payment, release, ... and any other matter constituting an avoidance or affirmative defense.” The purpose behind Rule 8(c) is to give plaintiff adequate notice prior to trial of the defenses that the defendant intends to assert. Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1377 (7th Cir.1990). Lee did not affirmatively plead in the district court that" }, { "docid": "23579546", "title": "", "text": "make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement. 29 U.S.C. § 1145. The reasons underlying the enactment of section 515 are clear, and we are not the first court to explore them. See, e.g., Central States, Southeast and Southwest Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d 1148, 1152-54 (7th Cir.1989) (in banc); Bituminous Coal Operators’ Assoc., Inc. v. Connors, 867 F.2d 625, 632-34 (D.C.Cir.1989); Southwest Administrators, Inc. v. Rozay’s Transfer, 791 F.2d 769, 773-75 (9th Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 951, 93 L.Ed.2d 999 (1987). Accordingly, we will discuss the relevant case law and legislative history only briefly. The Funds occupy the position of a third party beneficiary of the collective bargaining agreement between Brower’s (promisor) and Local 814 (promisee). Robbins v. Lynch, 836 F.2d 330, 333 (7th Cir.1988). Third party beneficiaries generally are subject to defenses that the promisor could raise in a suit by the promisee. See generally J. Calamari & J. Perillo, The Law of Contracts § 17-8, at 623-24 (2d ed. 1977). That is, they step into the shoes of the promisee. Collective bargaining agreements, however, are an exception to this general rule. See Lewis v. Benedict Coal Corp., 361 U.S. 459, 468-69, 80 S.Ct. 489, 494-95, 4 L.Ed.2d 442 (1960). In Benedict Coal, the Court held that an employer could not raise the union’s breach of the collective bargaining agreement as a defense against an employee benefit plan suing for delinquent contributions unless the collective bargaining agreement preserved such a defense in “unequivocal words.” Id. at 470-71, 80 S.Ct. at 495-96. In the wake of Benedict Coal, some employers seeking to escape their contribution obligations adopted a new strategy. Instead of arguing that the union had breached the collective bargaining agreement, they raised defenses going to the formation of the collective bargaining agreement such as fraud in the inducement. See Gerber Truck," }, { "docid": "2991618", "title": "", "text": "breached the contract constituted an affirmative defense to be raised by defendant); First Fed. Sav. & Loan Ass’n of Chicago v. National Boulevard Bank of Chicago, 104 Ill.App.3d 1061, 60 Ill.Dec. 798, 799-800, 433 N.E.2d 1036, 1037-38 (1982) (the plaintiff’s breach of contract was raised as an affirmative defense in a mortgage foreclosure suit). We find no abuse of discretion in the district court’s ruling. See Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 235 (7th Cir.1991) (failure to plead an affirmative defense as required by Rule 8(c) results in waiver of that defense); Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1377 (7th Cir.1990), The district court also held that Acme could not introduce any evidence of the shareholders’ alleged breach of contract because Acme failed to comply with Rule 9(c). Rule 9(c) requires a defendant to allege a plaintiff’s nonperformance of conditions precedent “specifically and with particularity.” Acme’s answer contained only a general denial of the shareholders’ performance. The district court did not abuse its discretion in excluding evidence that the shareholders breached the agreement because Acme did not comply with Rules 8(c) and 9(c). See Runnemede Owners, Inc. v. Crest Mortgage Corp., 861 F.2d 1053, 1058 (7th Cir.1988) (under Rule 9(c) the failure of an alleged condition precedent must be specifically alleged); Brooks v. Monroe Systems For Business, Inc., 873 F.2d 202, 205 (8th Cir.1989), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989) (same). We also find that the district court did not err in granting two other motions in limine brought by the shareholders. First, the district court excluded certain documents from evidence which concerned whether Acme made any settlement offers before July 1, 1983, in connection with the Martin litigation. The shareholders made numerous requests pursuant to Rule 34 for the production of these documents. The district court exercised its discretion pursuant to Rule 37(b)(2)(B) and 37(d) to exclude any evidence that Acme attempted to settle the Martin litigation. The district court did not abuse its discretion. See Parker v. Freightliner Corp., 940 F.2d 1019, 1024-25 (7th" }, { "docid": "22261904", "title": "", "text": "should not be permitted to ‘lie behind a log’ and ambush a plaintiff with an unexpected defense.” Perez, 830 F.2d at 57, quoting Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir.1987); see also Bettes v. Stonewall Ins. Co., 480 F.2d 92, 94 (5th Cir.1973). The appropriate thing for the defendant to do, of course, is to promptly seek the court’s leave to amend his answer. See DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334 (7th Cir.1987), quoting Mason v. Hunter, 534 F.2d 822, 825 (8th Cir.1976). His failure to do risks a finding that he has waived the defense. See Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1287 (7th Cir.1977) (“A claim that the statute of limitations bars a lawsuit is an affirmative defense, and it must be pleaded or it will be considered waived.”) (footnote omitted), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); see also, e.g., Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir.1990) (en banc); Carroll v. Acme-Cleveland Corp., 955 F.2d 1107, 1115 (7th Cir.1992); Pinto Trucking Serv., Inc. v. Motor Dispatch, Inc., 649 F.2d 530, 534 (7th Cir.1981); Stanish v. Polish Roman Catholic Union of America, 484 F.2d 713, 721 (7th Cir.1973); Roe v. Sears, Roebuck & Co., 132 F.2d 829, 832 (7th Cir.1943); 5 Wright & Miller, § 1278, at 477-89 & nn. 1-13 (2d ed. 1990 & Supp.1997) (collecting cases). We conclude that the defendants did waive their statute of limitations defense in this case. They did not include that defense in their answers to the original and amended complaints. R. 8, 29. In fact, the first and only mention of the statute of limitations came in their reply memorandum in support of the motion for summary judgment, submitted a year after the case was filed. R. 53 at 5-6. (No request was made for leave to amend the answer.) We can discern no justification for the delay. The defendants argue that not until Venters had filed her memorandum in opposition to the motion for summary judgment did" }, { "docid": "22395834", "title": "", "text": "the Guaranty was terminated through payment or release. In response to the allegation of Bank Leumi’s complaint that the notes at issue were covered by the Guaranty, Lee makes a general denial but \"affirmatively states that the guarantees speak for themselves.” Bank Leumi further alleged in its complaint that it “demanded Lee and Padda pay the balance due under the Guarantees, equaling the amount due from Andens to Bank Leumi, but they, and each of them, have unreasonably and vexatiously refused to do so.” In response to this allegation, Lee “denies that he has unreasonably or vexatiously refused to make payments thereon but affirmatively states that Bank Leumi was to proceed against standby letters of credit acting as collateral securing the notes prior to initiating an action against the Lees.” Neither of these responses may fairly be characterized as asserting the affirmative defenses of payment or release of the Guaranty. Merely stating that the Guarantees “speak for themselves” is not sufficient to put Bank Leumi on notice that Lee intends to defend on the basis that the Guaranty is terminated or released by virtue of payment. Failure to plead an affirmative defense results in a waiver of that defense. See DeValk, 811 F.2d at 334; A.D.E. Inc. v. Louis Joliet Bank & Trust Co., 742 F.2d 395, 397 (7th Cir.1984); Pinto Trucking Serv., Inc. v. Motor Dispatch, Inc., 649 F.2d 530, 534 (7th Cir.1981). In DeValk we held that a technical failure to plead an affirmative defense is not fatal when the parties have argued the defense in the district court. 811 F.2d at 334. That was not done here. Lee alleges in his motion opposing summary judgment that the original borrowings in connection with the Guaranty were paid. However, Lee does not explain or affirmatively set forth why the alleged payment would relieve him of his obligation under the Guaranty — particularly in light of the “unlimited” nature of the Guaranty. We find that Lee failed to assert the affirmative defense of payment or release of the Guaranty as required by Rule 8(c) and Lee has therefore waived that" }, { "docid": "16542055", "title": "", "text": "union].” Gerber Truck, 870 F.2d at 1149. That is, where, as here, an employer has signed a CBA in which it promises to contribute to a pension fund, the “pension fund’s reliance upon the terms of the CBA may not be thwarted ... by defenses that may defeat enforcement of the CBA between the employer and the union.” Cent. States, Southeast & Southwest Areas Pension Fund v. Kroger Co., 73 F.3d 727, 731 (7th Cir.1996). Thus: If the employer simply points to a defect in [the contract’s] formation — such as fraud in the inducement, oral promises to disregard the text, or the lack of majority support for the union and the consequent ineffectiveness of the pact under labor law — it must still keep its promise to the pension plans. Anything less may well saddle the plans with unfunded obligations. Gerber Truck, 870 F.2d at 1153. As we concluded in Gerber Truck, section 515 clearly forecloses the defense of fraud in the inducement. A & C submits, however, that Gerber Truck does not foreclose the defense of fraud in the execution. “Fraud in the inducement” occurs when fraud induces a party to assent to a commitment that the party understands but to which the party would not otherwise have assented; the promisor knows what it is signing but its assent is induced by fraud. “Fraud in the execution,” by contrast, entails deceiving a party to an agreement as to the very nature of the instrument it signs so that the party “actually does not know what he is signing, or does not intend to enter into a contract at all.” Rosenthal v. Great Western Fin. Sec. Corp., 14 Cal.4th 394, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (Cal.1996); see Southwest Adm’rs, Inc. v. Rozay’s Transfer, 791 F.2d 769, 774 (9th Cir.1986); 12 Williston on Contracts § 1488, at 332 (3d ed.1970). “Fraud in the execution results in the agreement being void ab initio, whereas fraud in the inducement makes the transaction merely voidable.” Rozay’s Transfer, 791 F.2d at 774; see Rosenthal, 926 P.2d at 1076; 12 Williston on Contracts §" }, { "docid": "22261903", "title": "", "text": "Cir.1989); Perez v. United States, 830 F.2d 54, 57 (5th Cir.1987). Of course, as with other pleadings, the district court has the discretion to allow an answer to be amended to assert an affirmative defense not raised at the outset. Fed. R. Civ. P. 15(a); see 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1278 at 494-95 (2d ed.1990). The pertinence of a particular defense may only become apparent after discovery, for example, in which case it would be reasonable for the court to permit the belated assertion of that defense. Nonetheless, the defendant remains obligated to act in timely fashion. See Davis v. Bryan, 810 F.2d 42, 44 (2d Cir.1987) (statute of limitations defense must be raised “at the earliest possible moment”) (internal quotation marks and citations omitted); Home Depot, Inc. v. Guste, 773 F.2d 616, 621 n. 4 (5th Cir.1985). Once the availability of an affirmative defense is reasonably apparent, the defendant must alert the parties and the court to his intent to pursue that defense. “A defendant should not be permitted to ‘lie behind a log’ and ambush a plaintiff with an unexpected defense.” Perez, 830 F.2d at 57, quoting Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir.1987); see also Bettes v. Stonewall Ins. Co., 480 F.2d 92, 94 (5th Cir.1973). The appropriate thing for the defendant to do, of course, is to promptly seek the court’s leave to amend his answer. See DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334 (7th Cir.1987), quoting Mason v. Hunter, 534 F.2d 822, 825 (8th Cir.1976). His failure to do risks a finding that he has waived the defense. See Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1287 (7th Cir.1977) (“A claim that the statute of limitations bars a lawsuit is an affirmative defense, and it must be pleaded or it will be considered waived.”) (footnote omitted), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); see also, e.g., Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir.1990) (en banc); Carroll" }, { "docid": "1173032", "title": "", "text": "reasonable inferences from the evidence must be drawn in favor of the non-movant. DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987); Bartman v. Allis-Chalmers Corp., 799 F.2d 811, 312 (7th Cir. 1986), cert. denied, - U.S. -, 107 S.Ct. 1304, 94 L.Ed.2d 160 (1987). Wisconsin law governs the contract in this case, and Wisconsin applies the position taken in the Restatement (Second) of Contracts in determining whether a misrepresentation theory of defense voids a contract. See First National Bank and Trust Co. v. Notte, 97 Wis.2d 207, 293 N.W.2d 530, 538 (1980). Falcone seeks rescission as relief from his obligations under the guaranty. Under the applicable law: “If a party’s manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient.” Rest. (Second) of Contracts § 164(1). The district court found that there was a material misrepresentation. Therefore, we focus on the alleged material misrepresentation, rather than on questions of fraudulent misrepresentation. A misrepresentation is an assertion that does not accord with facts as they exist ... [and] is material if it is likely to induce a reasonable person to manifest his assent, or if the maker knows that it is likely that the recipient will be induced to manifest his assent by the misrepresentation. Notte, 293 N.W.2d at 538. One cannot quarrel with the fact that a “misrepresentation” occurred, at least for purposes of deciding the summary judgment motions. Falcone claimed Roemer said that the contract would not extend beyond the equipment, although the contract plainly stated otherwise. Marine Bank failed to dispute in a timely manner whether the statement occurred; Roemer’s denial was not yet available to the court. Thus, for purposes of the motion, Roemer did make the statement, and it was a misrepresentation because it did not accord with facts as they existed. The misrepresentation was “material” if it was “likely to induce a reasonable person to manifest his assent,” or if “the maker knows that it is likely" }, { "docid": "1173031", "title": "", "text": "therefore as tolling the time for appeal.” 799 F.2d at 347. Marine Bank brought its motion only four days after the court entered summary judgment, and it was a “substantive” motion, requesting the court to reconsider its judgment in light of an affidavit directed at the heart of the case. The motion therefore tolled the time in which Marine Bank had to appeal. Because the appeal was filed within 30 days of the court’s denial of the motion to reconsider, we deny Falcone’s motion to dismiss the notice of appeal as untimely filed. II The district court properly granted summary judgment to Falcone if there was no genuine issue as to any material fact and Falcone was entitled to judgment “as a matter of law.” Fed.R.Civ.P. 56(c). In ruling on a summary judgment motion, the district court may not weigh the evidence and resolve issues of fact; disputed facts must be left for resolution in a trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Moreover, all reasonable inferences from the evidence must be drawn in favor of the non-movant. DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987); Bartman v. Allis-Chalmers Corp., 799 F.2d 811, 312 (7th Cir. 1986), cert. denied, - U.S. -, 107 S.Ct. 1304, 94 L.Ed.2d 160 (1987). Wisconsin law governs the contract in this case, and Wisconsin applies the position taken in the Restatement (Second) of Contracts in determining whether a misrepresentation theory of defense voids a contract. See First National Bank and Trust Co. v. Notte, 97 Wis.2d 207, 293 N.W.2d 530, 538 (1980). Falcone seeks rescission as relief from his obligations under the guaranty. Under the applicable law: “If a party’s manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient.” Rest. (Second) of Contracts § 164(1). The district court found that there was a material misrepresentation. Therefore, we focus on the alleged material misrepresentation, rather than on" }, { "docid": "10333004", "title": "", "text": "who prevail in collection actions against employers. The question presented in this case is whether the defense of abandonment of the collective bargaining agreement may be interposed by the employer in a Section 515 collection action. Although the question has not been addressed by our Court of Appeals, several other circuits have rejected the raising of various contract defenses in delinquent contribution cases under ERISA. See, e.g., Central States Pension Fund v. Gerber Truck Service, Inc., 870 F.2d 1148 (7th Cir.1989); Bituminous Coal Operators’ Association, Inc. v. Connors, 867 F.2d 625 (D.C.Cir.1989); Trustees of Colo. Statewide Ironworkers Fund v. A & P Steel, Inc., 812 F.2d 1518, 1522 (10th Cir.1987) (frustration of purpose defense rejected); Southwest Administrators, Inc. v. Rozay’s Transfer, 791 F.2d 769, 773 (9th Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 951, 93 L.Ed.2d 999 (1987) (trustees entitled by Section 515 to enforce the terms of an agreement even where agreement rescinded because employer fraudulently induced by union); Southern Calif. Retail Clerks Fund v. Bjorklund, 728 F.2d 1262 (9th Cir.1984) (fraud in the inducement defense rejected). See also Lewis v. Benedict Coal Corp., 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442 (1960) (defense of breach of contract rejected). Representative of these cases is the reasoning of the District of Columbia Circuit in Connors. As that court explained, an employee benefit plan such as the one involved here is a third party beneficiary of the collective bargaining agreement between the employer and the union. Thus, under traditional contract law, the benefit plan would step into the shoes of the union (promisee) and therefore be subject to any claim or defense that the promisor (employee) would have against the union. A pension fund, however, “is 'not a typical third party beneficiary’ [but,] [l]ike Cinderella’s stepsisters, it does not fit comfortably into the shoes of the promisee.” 867 F.2d at 632 (citation omitted). This misfit is no accident. Multiemployer employee benefit plans are something of the darlings of Congress. The legislative history of ERISA, and Section 515 in particular, has been extensively reviewed by numerous other courts, see Connors," }, { "docid": "16542040", "title": "", "text": "into a motion in limine to exclude evidence relating to any contract formation defense or defenses based on oral side agreements between A & C and the Union. The court denied the motion. The Funds then filed a motion in limine, accompanied by a supporting brief, in which they again requested exclusion of any evidence relating to side agreements. They submitted that our opinion in Central States, Southeast & Southwest Areas Pension Fund v. Gerber Truck Service, Inc., 870 F.2d 1148 (7th Cir.1989) (en banc), rendered irrelevant any evidence relating to the existence of oral understandings between A & C and the Union that modified the terms of the CBA. In their reply brief to A & C’s response to their motion in limine, the Funds specifically contended that Gerber Truck foreclosed the defenses of fraud in the inducement and fraud in the execution and that, even if fraud in the execution remained a viable defense to a pension fund’s efforts to collect delinquent contributions, A & C had not made out the defense. The district court ultimately granted the motion in limine to exclude evidence relating to the defense of fraud in the inducement, but not evidence relating to the defense of fraud in the execution. At trial, A & C presented its defense of fraud in the execution, seeking to prove that Mr. Clark had not known that the contract he signed with the Union obligated A & C to make contributions to the Funds and that his ignorance was excusable. After A & C closed its case, the court heard motions by counsel. The attorney for the Funds announced that they had two motions to make and proceeded to explain the first, a motion for leave to amend the complaint to conform to the evidence. After hearing arguments from counsel, the district court denied it and then added: “The motion for a directed finding or a directed verdict is also denied.” Tr.VI at 328. Counsel for the Funds asked if he could “make a record with respect to that second motion,” id., and the court invited the" }, { "docid": "1700217", "title": "", "text": "to their motion for summary judgment. The federal rules contemplate just such a situation. Fed.R.Civ.P. 56(e) ((“If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party”) (emphasis added)). “If appropriate” means “as a matter of the governing law.” Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983) (en banc). See Thornton v. Evans, 692 F.2d 1064, 1074 (7th Cir.1982). Thus, by not responding to Glass’ motion for summary judgment, the defendants were only admitting that no material issue of fact existed. The defendants did not waive all legal arguments based on those undisputed facts. If the court concludes that the same undisputed facts entitle either party to relief, it can so state. That appears to be what happened. Where facts are not disputed, if a district court grants one party’s motion for summary judgment and denies the other party’s cross-motion, this court can reverse and award summary judgment to the losing party below. In re Energy Cooperative, Inc., 832 F.2d 997, 1005 (7th Cir.1987). Or a party may preserve matters not properly pleaded by fully presenting and arguing the issue before the trial court. DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334 (7th Cir.1987). Second, when the district court denied the defendants’ motion for summary judgment, for all intents and purposes the case was over. The \"facts were not in dispute. And the district court identified no missing fact or disputed inference. Based on the court’s understanding of the law, once it denied the defendants’ motions, it was a certainty that the plaintiff had won. Third, and most importantly, the district court did not believe that the defendants had waived any arguments. When ruling on Glass’ motion, the court adopted its previous findings of fact from the earlier ruling and considered all of the defendants’ evidence in the record. See Rule 56(c) (court must consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits”). In granting Glass’ motion for summary judgment, the court found that There is no evidence submitted by defendants" }, { "docid": "22395835", "title": "", "text": "that the Guaranty is terminated or released by virtue of payment. Failure to plead an affirmative defense results in a waiver of that defense. See DeValk, 811 F.2d at 334; A.D.E. Inc. v. Louis Joliet Bank & Trust Co., 742 F.2d 395, 397 (7th Cir.1984); Pinto Trucking Serv., Inc. v. Motor Dispatch, Inc., 649 F.2d 530, 534 (7th Cir.1981). In DeValk we held that a technical failure to plead an affirmative defense is not fatal when the parties have argued the defense in the district court. 811 F.2d at 334. That was not done here. Lee alleges in his motion opposing summary judgment that the original borrowings in connection with the Guaranty were paid. However, Lee does not explain or affirmatively set forth why the alleged payment would relieve him of his obligation under the Guaranty — particularly in light of the “unlimited” nature of the Guaranty. We find that Lee failed to assert the affirmative defense of payment or release of the Guaranty as required by Rule 8(c) and Lee has therefore waived that defense. Lee now urges this court to accept as a ground for reversal an argument that he failed to raise in either his answer or his motion opposing summary judgment. As we said in Erff v. MarkHon Indus., Inc., “[a] trial judge may properly depend upon counsel to apprise him of the issues for decision. He is not obligated to conduct a search for other issues which may lurk in the pleadings.” 781 F.2d 613, 619 (7th Cir.1986) (quoting Desert Palace, Inc. v. Salisbury, 401 F.2d 320, 324 (7th Cir. 1968)). Thus Lee has waived the issue of discharge of the Guaranty through payment by failing to properly raise it as an affirmative defense in the district court. Lee next argues that the summary judgment was improper because a genuine issue of material fact existed regarding an alleged oral modification of the Guaranty. We assume that this issue is raised in the nature of an alternative pleading since a Guaranty that has been terminated through payment could not be subsequent ly orally modified. Apparently Lee" }, { "docid": "14833054", "title": "", "text": "year of the date the parties entered into the contract. Neither party denies that the alleged oral contract in this ease is incapable of being performed within one year. Therefore, we agree with the district court that even if there was an oral agreement to renew, it would be invalid as a matter of law because it would violate the Illinois Statute of Frauds’ limitation of enforceable oral contracts to those contracts performable within one year. Pyrrhus asserts, however, that Dresser waived the Statute of Frauds defense, for Dresser failed to raise this affirmative defense in its answer to Count I of the counterclaim as required under Federal Rule of Civil Procedure 8(c). “As a general matter, plaintiffs [Pyrrhus in this case] are correct insofar as failure to plead an affirmative defense results in a waiver of that defense. [Citation omitted] But when parties argue an affirmative defense in the district court, technical failure to plead the defense is not fatal. ” De Valk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334 (7th Cir.1987) (emphasis added); see also Bull’s Corner Restaurant, Inc. v. Director of Federal Emergency Management Agency, 759 F.2d 500, 502 (5th Cir.1985) (“ ‘Where [an affirmative defense] is raised in the trial court in a manner that does not result in unfair surprise, ... technical failure to comply pre cisely with Rule 8(c) is not fatal.’ ” (Citation omitted)). In the instant case, Dresser raised its Statute of Frauds defense for the first time in its reply brief on its “Motion for Judgment on the Pleadings.” While this affirmative defense technically should have been raised in Dresser’s Answer to Count I of the counterclaim, Pyrrhus nevertheless received a full opportunity to respond when it filed an “Additional Memorandum” in the trial court. Since the “parties argue[d the] affirmative defense in the district court,” we refuse to hold that the technical pleading error is fatal. Pyrrhus advanced six further arguments in asserting that the Statute of Frauds is inapplicable, none of which has substance. Pyrrhus’ initially contends that the July 1987 renewal letter and the" }, { "docid": "16542054", "title": "", "text": "affect beneficiaries. It determined that earlier law for collecting delinquent contributions had been “ ‘insufficient and unnecessarily cumbersome and costly. Some simple collection actions brought by plan trustees have been converted into lengthy, costly, and complex litigation concerning claims and defenses unrelated to the employer’s promise and the plans’ entitlement to the contributions.’” Cent. States, Southeast & Southwest Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d 1148, 1152-53 (7th Cir.1989) (en banc) (quoting 126 Cong. Rec. 23039 (statement of Rep. Thompson)). Section 515 was intended to “ ‘permit trustees of plans to recover delinquent contributions efficaciously, and without regard to issues which might arise under labor-management relations law ....’” Id. (quoting 126 Cong. Rec. 23039 (statement of Rep. Thompson)). We therefore concluded in Gerber Truck that, with respect to documents in which employers promise to make contributions to pension funds on behalf of their employees, section 515 allows pension funds to enforce the writings according to their terms “without regard to understandings or defenses applicable to the original parties [the employer and the union].” Gerber Truck, 870 F.2d at 1149. That is, where, as here, an employer has signed a CBA in which it promises to contribute to a pension fund, the “pension fund’s reliance upon the terms of the CBA may not be thwarted ... by defenses that may defeat enforcement of the CBA between the employer and the union.” Cent. States, Southeast & Southwest Areas Pension Fund v. Kroger Co., 73 F.3d 727, 731 (7th Cir.1996). Thus: If the employer simply points to a defect in [the contract’s] formation — such as fraud in the inducement, oral promises to disregard the text, or the lack of majority support for the union and the consequent ineffectiveness of the pact under labor law — it must still keep its promise to the pension plans. Anything less may well saddle the plans with unfunded obligations. Gerber Truck, 870 F.2d at 1153. As we concluded in Gerber Truck, section 515 clearly forecloses the defense of fraud in the inducement. A & C submits, however, that Gerber Truck does not foreclose" }, { "docid": "22395833", "title": "", "text": "as a matter of law. Fed.R.Civ.P. 56(c); see DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987). Lee first argues that summary judgment was improperly granted because there was a genuine issue of material fact concerning the continued existence of the Guaranty. Lee contends, for the first time on appeal, that the Guaranty terminated prior to the issuance of the letters of credit due to the payment of the original underlying indebtedness. However, we need not reach the merits of this argument. The Federal Rules of Civil Procedure require affirmative defenses to be specifically pleaded. Fed.R.Civ.P. 8(c). Rule 8(c) provides that a party must “set forth affirmatively” the defenses of “payment, release, ... and any other matter constituting an avoidance or affirmative defense.” The purpose behind Rule 8(c) is to give plaintiff adequate notice prior to trial of the defenses that the defendant intends to assert. Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1377 (7th Cir.1990). Lee did not affirmatively plead in the district court that the Guaranty was terminated through payment or release. In response to the allegation of Bank Leumi’s complaint that the notes at issue were covered by the Guaranty, Lee makes a general denial but \"affirmatively states that the guarantees speak for themselves.” Bank Leumi further alleged in its complaint that it “demanded Lee and Padda pay the balance due under the Guarantees, equaling the amount due from Andens to Bank Leumi, but they, and each of them, have unreasonably and vexatiously refused to do so.” In response to this allegation, Lee “denies that he has unreasonably or vexatiously refused to make payments thereon but affirmatively states that Bank Leumi was to proceed against standby letters of credit acting as collateral securing the notes prior to initiating an action against the Lees.” Neither of these responses may fairly be characterized as asserting the affirmative defenses of payment or release of the Guaranty. Merely stating that the Guarantees “speak for themselves” is not sufficient to put Bank Leumi on notice that Lee intends to defend on the basis" }, { "docid": "5399148", "title": "", "text": "which might arise under labor-management relations law — other than 29 U.S.C. 186.” Id. Courts of appeals have interpreted section 515 as precluding employers from raising a variety of contract defenses as a means of avoiding the obligation to contribute to employee benefit plans. For example, an employer may not assert defects in the formation of the collective bargaining agreement, such as a lack of majority support for the union, Benson v. Brower’s Moving & Storage, Inc., 907 F.2d 310, 316 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 511, 112 L.Ed.2d 524 (1990); Berry v. Garza, 919 F.2d 87, 90 (8th Cir.1990), fraud in the inducement, Rozay’s Transfer, 791 F.2d at 775, or oral promises to disregard the text of the agreement, Central States, Southeast and Southwest Areas Pension Fund v. Gerber Truck Service, Inc., 870 F.2d 1148, 1151-56 (7th Cir.) (en banc). Nor may an employer assert that the union abandoned the collective bargaining agreement. Benson, 907 F.2d at 314-16. Our research has uncovered only three recognized defenses: (1) the pension contributions themselves are illegal, see Kaiser Steel Cory. v. Mullins, 455 U.S. 72, 86-88, 102 S.Ct. 851, 861-62, 70 L.Ed.2d 833 (1982); (2) the collective bargaining agreement is void ab initio, as where there is fraud in the execution, and not merely voidable, as in the case of fraudulent inducement, Rozay’s Transfer, 791 F.2d at 773-75; Benson, 907 F.2d at 314; and (3) the employees have voted to decertify the union as its bargaining representative, thus prospectively voiding the union’s collective bargaining agreement. Sheet Metal Workers’ Int’l Ass’n, Local 206 v. West Coast Sheet Metal Co., 954 F.2d 1506, 1509-10 (9th Cir.1992). Starlite argues that the Union’s threat to picket coerced it into signing the collective bargaining agreement and that this coercion amounted to “fraud in the execution” of the agreement. To prevail on a defense of fraud in the execution, a party must show “excusable ignorance of the contents of the writing signed.” Rozay’s Transfer, 791 F.2d at 774 (quoting U.C.C. § 3-305 cmt. 7); accord J. Calamari & J. Perillo, supra, § 9-22 (party" }, { "docid": "6300614", "title": "", "text": "Blaney commenced proceedings in the MSPB under the CSRA, he had to complete the CSRA’s administrative process in order to assert jurisdiction under the CSRA in federal court. Moreover, even if we were to assume that the defendants’ breach of the settlement agreement constituted á judicially reviewable action for which Mr. Blaney could seek review in federal court, Mr.' -Blaney failed to seek review of the action in a timely manner. .Under 5 U.S.C. § 7703(b)(2), review of a mixed case in the district court “must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action.” Mr. Blaney, however, brought this action in May 1992, well over two and one-half years after the September 1989 breach of the settlement agreement. Mr. Blaney argues that the defendants’ failure to plead statute of limitations. as an affirmative defense in their answer constitutes a waiver of the matter under Federal Rule of Civil Procedure 8(c). However, because the defendants raised the issue in their motion to dismiss and the district court chose to recognize the timeliness issue as a defense, the defendants cannot be deemed to have waived the issue. See DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334 (7th Cir.1987) (stating that “when parties argue an affirmative defense in the district court, technical failure to plead the defense is not fatal”). Moreover, although a time limit like the one in § 7708(b)(2) is not jurisdictional, see White v. Bentsen, 31 F.3d 474, 475 (7th Cir.1994), Mr. Blaney has offered no reason — either to the district court or to us — for the lengthy delay in bringing this action, much less one that might justify the delay under the doctrines of equitable tolling or equitable estoppel, see id. at 475. Finally, Mr. Blaney argues that, because he filed his mixed case more than 120 days after he filed his original appeal with the MSPB and the MSPB issued no judicially reviewable action in the interim, jurisdiction exists under 5 U.S.C. § 7702(e)(1)(B). That section provides that, if after" } ]

[ { "docid": "22613753", "title": "", "text": "particular restraint before intruding into an ongoing disciplinary proceeding by a state court against a member of the State’s bar, where there is an adequate opportunity to raise federal issues in that proceeding. The traditional and primary responsibility of state courts for establishing and enforcing standards for members of their bars and the quasi-criminal nature of bar disciplinary proceedings, In re Ruffalo, 390 U. S. 544, 551 (1968), call for exceptional deference by the federal courts. See Gipson v. New Jersey Supreme Court, 558 F. 2d 701, 703-704 (CA3 1977); Erdmann v. Stevens, 458 F. 2d 1205, 1209-1210 (CA2 1972). I continue to adhere to my view, however, that Younger v. Harris, 401 U. S. 37 (1971), is in general inapplicable to civil proceedings. See Huffman v. Pursue, Ltd., 420 U. S. 592, 613 (1975) (Brennan, J., dissenting). Justice Marshall, with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, concurring in the judgment. I agree with much of the general language in the Court’s opinion discussing the importance of the State’s interest in regulating the professional conduct of its attorneys. However, I believe that the question whether Younger abstention would have been appropriate at the time that the District Court or the Court of Appeals considered this issue is not as simple as the Court’s opinion might be read to imply. As the Court acknowledges, absent an ongoing judicial proceeding in which there is an adequate opportunity for a party to raise federal constitutional challenges, Younger is inapplicable. Ante, at 432. See also Gibson v. Berryhill, 411 U. S. 564,577 (1973). Here, it is unclear whether, at the time the lower courts addressed this issue, there was an adequate opportunity in the state disciplinary proceedings to raise a constitu tional challenge to the disciplinary rules. Furthermore, it is unclear whether proceedings before the Ethics Committee are more accurately viewed as prosecutorial rather than judicial in nature. I agree with the Court that we may consider events subsequent to the decisions of the courts below because the federal litigation has addressed only the question whether abstention is appropriate. Thus far," } ]

[ { "docid": "12429682", "title": "", "text": "to the Sinclair case, and the Rooker-Feldman doctrine does not bar this Court’s exercise of jurisdiction. B. Younger Abstention 1. Standard of Review In Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court could not enjoin state criminal proceedings enforcing state law on the ground that the underlying state law was unconstitutional. See also Samuels v. Mackell, 401 U.S. 66, 69, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (holding that Younger applies to declaratory judgments). The Court soon expanded the Younger holding to prohibit federal injunctions of certain civil proceedings which were quasi-criminal or in aid of state courts’ authority to enforce their orders. See, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying Younger to state nuisance proceedings); Juidice v. Vail, 430 U.S. 327, 334-36, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (applying Younger to contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 444-46, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (applying Younger to state civil enforcement proceedings to recover fraudulently-obtained welfare payments). Subsequently, in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the Court ruled that district courts should only abstain under Younger if: (1) there are ongoing state proceedings of a judicial nature; (2) these proceedings implicate important state interests; and (3) the state proceedings offer adequate opportunity to raise federal claims. See also Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 408 (3d Cir.2005) (applying the three-prong test of Middlesex County). In Pennzoil v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), however, the Court cautioned that it did “not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court. Rather ... we rely on the State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory.’ ” Id. at 14 n. 12, 107 S.Ct. 1519 (citation omitted). Amplifying these limitations," }, { "docid": "17151102", "title": "", "text": "DISCUSSION The decision of the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny, have established the principle that federal courts should in general refuse to enjoin ongoing state judicial proceedings. Though the reach of the Younger abstention doctrine has been expanded by the courts over the past two decades, the basic policy rationale has remained the same — a system of federalism demands comity between judiciaries with overlapping jurisdictions. This guiding principle is important for both abstract and practical reasons. In the early days of the union, comity was necessary to minimize strain on the relations between state and federal governments. Comity will continue to be crucial to the future of federalism as well. See Younger, supra, 401 U.S. at 44-45, 91 S.Ct. at 750-51. On a more practical level, abstention can avoid the waste and confusion of duplicative judicial proceedings, with the concomitant potential for inconsistent or counterproductive results. Younger v. Harris held that a federal court should refuse to enjoin an ongoing state criminal proceeding absent bad faith, harassment, or other unusual circumstances calling for equitable relief. Younger, supra, 401 U.S. at 54, 91 S.Ct. at 755. In subsequent cases, the Supreme Court has expanded the principles of Younger to apply to state civil and administrative proceedings. See Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). In Mid-dlesex County, the Court stated that “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.” Middlesex County, supra, 457 U.S. at 432, 102 S.Ct. at 2521 (citing Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979)). The central inquiry which courts have pursued, in deciding whether to abstain under the Younger doctrine, is whether the state proceedings afford an adequate" }, { "docid": "2385192", "title": "", "text": "de novo” in abstention cases, inasmuch as the district court’s discretion to abstain “is narrowed by a federal court’s obligation to exercise its jurisdiction in all but the most extraordinary cases.” Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d Cir.1998). As that case indicates, generally federal courts should not abstain from exercising jurisdiction on abstention grounds, for abstention “is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959). When a court does elect to abstain, the decision must be under “the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.” Id. The Supreme Court has announced several circumstances which qualify as exceptional and in which abstention is appropriate. One of these “doctrines” is applicable to this case. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court advised federal courts to abstain from deciding a matter that would be properly before them but for the pendency of state criminal proceedings in the matter. Id. at 43-45, 91 S.Ct. 746. We look at three factors to determine if Younger abstention is warranted: “(1) whether the underlying proceedings constitute an ongoing state judicial proceeding, (2) whether the proceedings implicate important state interests, and (3) whether there is an adequate opportunity in the state proceedings to raise a constitutional challenge.” Tindall v. Wayne County Friend of the Court, 269 F.3d 533, 538 (6th Cir.2001); see also Cooper v. Parrish, 203 F.3d 937, 954 (6th Cir.2000); Zalman v. Armstrong, 802 F.2d 199, 201-02 (6th Cir.1986). First, when determining whether state court proceedings involving the plaintiffs are pending, we look to see if the state court proceeding was pending at the time the federal complaint was filed. Zalman, 802 F.2d at 204. It remains pending until a litigant has exhausted his state appellate remedies. Huffman v. Pursue, Ltd., 420 U.S. 592, 609, 95 S.Ct. 1200, 43 L.Ed.2d 482" }, { "docid": "5261414", "title": "", "text": "by Esso is beyond this court’s authority to provide since Younger v. Harris dictates abstention under these facts. I start with familiar principles. When a party is seeking to enjoin state judicial or quasi-judicial proceedings, principles of federalism and comity are implicated. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Court outlined a rule of abstention that among other things, seeks “to achieve a proper balance between sensitive federal and state interests.” Brooks v. N.H. Supreme Court, 80 F.3d 633, 637 (1st Cir.1996) (citing Younger v. Harris, 401 U.S. at 44, 91 S.Ct. 746). Thus, Younger ordinarily precludes a federal court from adjudicating the merits of a federal claim when doing so “would needlessly inject federal courts into ongoing state criminal prosecutions.” Id. The doctrine has, however, evolved to include within its ambit other types of state proceedings such as civil actions and administrative adjudications. Id.; see also Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 31 (1st Cir.2004) (observing that “the Younger doctrine has been extended to ‘coercive’ civil cases involving the state and to comparable state administrative proceedings that are quasi-judicial in character and implicate important state interests”). Indeed, the application of Younger is not a matter exclusive to criminal prosecutions anymore. See, e.g., New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 367-68, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (stating that federalism and comity concerns have led to the extension of the Younger protection beyond criminal prosecutions); Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 623-27, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (applying abstention under Younger to state administrative proceedings based on sex discrimination); Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432-35, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (applying Younger abstention to state attorney disciplinary proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592, 603-05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying Younger to a civil action initiated by the state to enforce a nuisance statute). In Middlesex County Ethics Comm. v. Garden State Bar Ass’n," }, { "docid": "15298379", "title": "", "text": "Rule 11 sanctions against plaintiffs for their claims against Markman, which it found were “wholly lacking in merit ... spurred solely by plaintiffs’ political and professional animus toward Markman.” Dist. Ct. Op. at 32. Plaintiffs now appeal to this Court, arguing that the district court improperly abstained because the same issues were not being litigated in state court, and because a First Amendment exception prevents the application of Younger. For the reasons detailed below, we find Plaintiffs’ arguments unavailing. II This Court reviews a district court’s decision to invoke Younger abstention de novo. Cooper v. Parrish, 203 F.3d 937, 954 (6th Cir.2000). We review a district court’s imposition of sanctions for abuse of discretion. Frank v. D'Ambrosi, 4 F.3d 1378, 1387 (6th Cir.1993) (citing Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 399, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). In Younger v. Harris, the Supreme Court held that federal injunctions against a state criminal law enforcement process could be issued only “under extraordinary circumstances where the danger of irreparable loss is both great and immediate.” 401 U.S. at 45, 91 S.Ct. 746. So-called “Younger abstention” was later extended to civil proceedings in state court. Huff man v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The Supreme Court in these cases noted that federal courts should not act to restrain a criminal prosecution, or interfere with state appellate proceedings. Younger, 401 U.S. at 43, 91 S.Ct. 746; Huffman, 420 U.S. at 608, 95 S.Ct. 1200. Three factors determine whether a federal court should abstain from interfering in a state court action: (1) whether the underlying proceedings constitute an ongoing judicial proceeding, (2) whether the proceedings implicate an important state interest, and (3) whether there is an adequate opportunity in the state proceedings to raise a constitutional challenge. Tindall v. Wayne County Friend of the Court, 269 F.3d 533, 538 (6th Cir.2001). First and most importantly, there was an “ongoing judicial proceeding” at the time of the district court’s review, namely a criminal investigation with the same parties, involving the same underlying set of facts" }, { "docid": "5261415", "title": "", "text": "cases involving the state and to comparable state administrative proceedings that are quasi-judicial in character and implicate important state interests”). Indeed, the application of Younger is not a matter exclusive to criminal prosecutions anymore. See, e.g., New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 367-68, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (stating that federalism and comity concerns have led to the extension of the Younger protection beyond criminal prosecutions); Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 623-27, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (applying abstention under Younger to state administrative proceedings based on sex discrimination); Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432-35, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (applying Younger abstention to state attorney disciplinary proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592, 603-05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying Younger to a civil action initiated by the state to enforce a nuisance statute). In Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. at 432, 102 S.Ct. 2515, the Court established that the analytical framework under which Younger abstention must be analyzed is comprised of three factors. See Brooks v. N.H. Supreme Court, 80 F.3d at 638. Federal courts must abstain from reaching the merits of a case over which it has jurisdiction if an ongoing state judicial proceeding: (1) was instituted pri- or to the federal proceeding; (2) implicates an important state interest; and (3) provides an adequate opportunity for the plaintiff to raise the claims advanced in the federal lawsuit. Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. at 432, 102 S.Ct. 2515. In this spirit, the recently decided case of Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d at 34-36, relying on the Supreme Court decision in Huffman v. Pursue, Ltd., 420 U.S. at 607-11, 95 S.Ct. 1200, accentuates exhaustion of available state remedies as a prerequisite for overcoming Younger abstention. The parties in this case have made patently clear their disagreement as to the application of Maymó to the facts of this" }, { "docid": "4258364", "title": "", "text": "1428, 1433, 51 L.Ed.2d 752 (1977) (citing Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)). And a district court should not shirk its obligation to exercise jurisdiction where a case may properly be adjudicated. See Cohens v. Virginia, 19 U.S. 264, 5 L.Ed. 257 (1821). 1. Younger Abstention In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971), the Supreme Court held that the federal district court could not intervene in an ongoing criminal proceeding in state court and noted that the “normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions”. Younger applied the abstention doctrine to a state criminal proceeding, but the doctrine has since been expanded to apply to quasi-criminal, civil, and administrative proceedings. E.g., Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Younger policies fully applicable to noncriminal judicial proceeding when important state interests are involved); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (civil enforcement action); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (nuisance action). Defendant argues that I should abstain, because to enjoin the Chief Judge of the Nineteenth Judicial Circuit from enforcing the Circuit’s local rule would be in direct violation of the precepts embodied in the Younger decision and “would represent a gross intrusion into the functions of Illinois state courts.” I disagree. Plaintiffs’ request that I examine the constitutionality of a rule promulgated by the state judges does not implicate Younger. Younger is confined to cases in which the federal plaintiff had engaged in conduct actually or arguably in violation of state law, thereby exposing himself to an enforcement proceeding in state court which, once commenced, must be allowed to continue uninterrupted to conclusion. Allegheny Corp. v. Hasse, 896 F.2d 1046, 1053 (7th Cir.1990). Plaintiffs contend that there are ongoing proceedings here, namely the case involving Jane Doe who is accused of DUI violations. But I" }, { "docid": "4962845", "title": "", "text": "since expanded the doctrine to include cases of a quasi-criminal nature involving states as parties and implicating important state interests. See Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (abstention from enjoining state bar disciplinary proceedings); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (state emergency child abuse proceedings); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (state contempt proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (public nuisance proceedings). Several policies underlie the doctrine and must inform our application of it. One is the traditional doctrine of equity that a court should not issue an injunction when an adequate remedy at law exists and should not easily restrain a criminal prosecution. Huffman, 420 U.S. at 600-01, 95 S.Ct. at 1206, citing, Younger v. Harris, 401 U.S. 37 at 43, 91 S.Ct. 746 at 750, 27 L.Ed.2d 669. Thus, one focus of our inquiry is whether the ongoing state proceeding provides an adequate opportunity to raise federal constitutional issues. See, e.g., Middlesex County, 457 U.S. at 432, 102 S.Ct. at 2521. Another policy underlying Younger is the notion of “comity,” that is, a “proper respect for state functions,” such that in vindicating federal rights we must “always endeavor [] to do so in ways that will not unduly interfere with the legitimate activities of the State.” Younger, 401 U.S. at 44, 91 S.Ct. at 750. Three questions must be addressed. First, is there some ongoing state judicial proceeding? See Middlesex County, 457 U.S. at 432, 102 S.Ct. at 2521. This question is crucial because “ ‘the relevant principles of equity, comity, and federalism “have little force in the absence of a pending state proceeding.” ’ ” Huffman, 420 U.S. at 602-03, 95 S.Ct. at 1207, quoting Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505 (1974). When no state proceeding is pending, federal intervention does not duplicate legal proceedings, disrupt the state system of justice or insult" }, { "docid": "3550485", "title": "", "text": "proceedings; (2) implication of an important state interest in the proceedings; and (3) an adequate opportunity to raise federal questions in the proceedings. Goldie’s, 739 F.2d at 469 (citing Middlesex Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1981)). Bad faith prosecution or harassment make abstention inappropriate even where these requirements are met. Younger, 401 U.S. at 47-49, 91 S.Ct. at 752-53. Similarly, satisfaction of the three requirements will not support abstention where a statute is flagrantly and patently violative of constitutional prohibitions. Id. at 53-54, 91 S.Ct. at 755-56. 1. Ongoing State Proceedings At the time the district court abstained, World Famous had yet to appeal the adverse judgments in World Famous II and World Famous III to the state Supreme Court. Failure to exhaust state appellate remedies satisfies the requirement that there be “ongoing judicial proceedings” in order to justify federal abstention. See Huffman v. Pursue, Ltd., 420 U.S. 592, 608-09, 95 S.Ct. 1200, 1210, 43 L.Ed.2d 482 (1975). A First Amendment challenge does not alter the propriety of abstention in such a case. See Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., — U.S.-, 106 S.Ct. 2718, 2724, 91 L.Ed.2d 512 (1986) (abstention proper where a First Amendment challenge may be raised in state court review of an administrative proceeding); Huffman, 420 U.S. at 612-13, 95 S.Ct. at 1212, 43 L.Ed.2d 482 (1975). 2. Important State Interest Implicated in State Proceedings Younger abstention is not limited to ongoing state criminal proceedings, see, e.g., Huffman, 420 U.S. at 609, 95 S.Ct. at 1210. It extends to certain civil proceedings provided those proceedings implicate important state interests. See Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., - U.S. -, 106 S.Ct. 2718, 2724, 91 L.Ed.2d 512 (1986) (state civil rights enforcement proceedings); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (temporary removal of child in child-abuse context); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (proceeding for recovery of fraudulently obtained welfare benefits); Middlesex, 423 U.S. at" }, { "docid": "19351679", "title": "", "text": "to exercise supplemental jurisdiction over the remaining state-law claims. ReadyLink appealed. As ReadyLink’s appeal to this court was pending, the California Court of Appeal affirmed the Superior Court’s denial of mandamus, expressly holding that the Commissioner’s decision was not preempted by federal law. ReadyLink HealthCare, Inc. v. Jones, 210 Cal.App.4th 1166, 148 Cal.Rptr.3d 881, 886-92 (2012). The California Supreme Court denied ReadyL-ink’s subsequent petition for review. II. Younger Abstention A. The district court had jurisdiction over ReadyLink’s complaint under 28 U.S.C. § 1331, see Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 642, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002), and we have jurisdiction over this appeal under 28 U.S.C. § 1291, see Agriesti v. MGM Grand Hotels, Inc., 53 F.3d 1000, 1000-01 (9th Cir.1995). We review the district court’s Younger determination de novo. Gilbertson v. Albright, 381 F.3d 965, 982 n. 19 (9th Cir.2004) (en banc). B. In Younger v. Harris, the Supreme Court reaffirmed the long-standing principle that federal courts sitting in equity cannot, absent exceptional circumstances, enjoin pending state criminal proceedings. 401 U.S. at 43-54, 91 S.Ct. 746. The Court, citing comity concerns, later extended the Younger principle to civil enforcement actions “akin to” criminal proceedings, Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), and to suits challenging “the core of the administration of a State’s judicial system,” Juidice v. Vail, 430 U.S. 327, 335, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). The Court’s subsequent opinion in Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), found abstention appropriate when (1) there is “an ongoing state judicial proceeding,” (2) those “proceedings implicate important state interests,” and (3) there is “an adequate opportunity in the state proceedings to raise constitutional challenges.” Id. at 432, 102 S.Ct. 2515. Our ensuing decisions concluded that the three Middlesex factors controlled Younger abstention in civil actions. See, e.g., Meredith v. Oregon, 321 F.3d 807, 816-17 (9th Cir.2003); Fresh Int’l Corp. v. Agric. Labor Relations Bd., 805 F.2d 1353, 1357-62 (9th Cir.1986)." }, { "docid": "23275126", "title": "", "text": "II. We review for abuse of discretion the district court’s decision to abstain from exercising jurisdiction. However, the district court’s discretion to abstain is quite narrow, and is limited to those cases that meet the abstention requirements established by the Supreme Court. See United Services Auto. Ass’n v. Muir, 792 F.2d 356, 361 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 875, 93 L.Ed.2d 830 (1987) (“[A] district court has little or no discretion to abstain in a case that does not meet traditional abstention requirements.”). III. A. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that principles of federalism and comity require district courts to abstain from enjoining pending state criminal proceedings absent extraordinary circumstances. Younger thus significantly limited the power of the federal courts to interfere with state judicial proceedings. The Supreme Court has since expanded the reach of this doctrine such that federal courts now must also abstain from enjoining, explicitly or implicitly, state civil proceedings that implicate important state interests. See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987); Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). On the basis of the Supreme Court’s analysis in Middlesex, we have articulated three requirements which must be met before a federal court may properly invoke the Younger abstention doctrine: (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims. Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989). Whenever all three of these requirements are satisfied, abstention is appropriate absent a showing of bad faith prosecution, harassment, or a patently unconstitutional rule that will cause irreparable injury to the plaintiff. See id. Application of the three Middlesex requirements to the facts in the present case demonstrates that the district court properly exercised" }, { "docid": "13595721", "title": "", "text": "extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Lops, 140 F.3d at 942 (internal citations and quotation marks omitted). Nevertheless, despite the fact that abstention is the exception and not the rule, if the require ments of the Younger or Colorado River doctrines are met, the Court must abstain from hearing the ICARA petition, as have numerous other courts. See, e.g., Bouvagnet v. Bouvagnet, 2001 WL 1263497 (N.D.Ill. Oct.22, 2001) (granting motion to dismiss action as a result of finding abstention appropriate under Younger); Grieve v. Tamerin, 2000 WL 1240199 (E.D.N.Y. Aug.25, 2000), aff'd, 269 F.3d 149 (2nd Cir.2001) (affirming district court’s decision to abstain under Younger); Morisada Corp. and ABC Corp. v. Beidas, 939 F.Supp. 732 (D.Haw.1995) (staying action pursuant to Colorado River). A. Younger doctrine The Younger abstention doctrine prohibits a federal court from interfering in pending state civil cases where (1) there is an ongoing state proceeding (2) that implicates important state interests and (3) there is an adequate opportunity in the state proceeding to raise the federal issues. Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). When all of the Younger requirements are present, the federal court must abstain, absent “a showing of bad faith, harassment or other extraordinary circumstances.” Bouvagnet, 2001 WL 1263497, at *2 (N.D.Ill. Oct.22, 2001) (quoting Philip Morris, Inc. v. Blumenthal, 123 F.3d 103, 105 (2nd Cir.1997)). 1. There is an ongoing state proceeding The first requirement for abstention under Younger is that there be an ongoing state proceeding that is judicial in nature. At the October 10 proceeding, the court stated, Okay. So I think the Hague applies, but so does Article 13 until I know more about what’s happening with this boy. Because Article 13,B says that I don’t have to return the boy if there’s a grave risk that his or her — would expose him to physical or psychological harm.... ... I don’t" }, { "docid": "3778187", "title": "", "text": "of such a bar, both summary judgment on Counts IV and V and a declaratory judgment finding these practices unconstitutional were appropriate (Counts IV, V); and (3) with respect to the contempt proceedings, because Tindall failed to demonstrate that the FOC and the WCCC do not follow their established procedures for conducting contempt proceedings, and because he could not therefore demonstrate the requisite bad faith or flagrant unconstitutionality to overcome a Younger abstention bar, the district court abstained from ruling on this issue (Count VI). In short, the district court granted Tindall’s motion for summary judgment on Counts IV and V and declined to rule on Counts III and VI, finding no exception to the Younger abstention doctrine. II. DISCUSSION The Younger abstention doctrine counsels a federal court to abstain from adjudicating a matter properly before it in deference to ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37, 37-38, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see also Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (extending the doctrine to encompass civil and administrative proceedings). Three considerations have emerged for determining when abstention is appropriate: (1) whether the underlying proceedings constitute an ongoing state judicial proceeding; (2) whether the proceedings implicate important state interests; and (3) whether there is an adequate opportunity in the state proceedings to raise a constitutional challenge. Where a review of these considerations suggests that the state court should properly adjudicate the matter, a federal court should abstain and order the federal complaint dismissed. If, however, a plaintiff can demonstrate extraordinary circumstances such as bad faith, harassment, flagrant unconstitutionality, or another unusual circumstance warranting equitable relief, then a federal court may decline to abstain. See Fieger v. Thomas, 74 F.3d 740, 750 (6th Cir.1996). A district court’s decision to abstain from adjudicating a claim pursuant to the Younger doctrine is a question of law that we review de novo. See Cooper v. Parrish, 203 F.3d 937, 954 (6th Cir.2000). In the instant case, the district court reviewed each of these factors" }, { "docid": "3550484", "title": "", "text": "Co. v. City of Redlands, 703 F.2d 375, 377 (9th Cir.1983) (quoting Pue v. Sillas, 632 F.2d 74, 78 (9th Cir.1980)). See also Fresh International Corp. at 1356 n. 2. In the case at bench, the district court abstained on the basis of Younger. No other abstention principle is involved. Our review, therefore, is de novo. Abstention from the exercise of federal jurisdiction is the exception, not the rule. Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Absent significant countervailing interests, the federal courts are obliged to exercise their jurisdiction. Id.; County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959). In Younger v. Harris, the Supreme Court held that federal courts should not enjoin pending state criminal proceedings except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. 401 U.S. at 46, 91 S.Ct. at 751. Id. Three requirements have evolved for proper invocation of Younger: (1) ongoing state judicial proceedings; (2) implication of an important state interest in the proceedings; and (3) an adequate opportunity to raise federal questions in the proceedings. Goldie’s, 739 F.2d at 469 (citing Middlesex Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1981)). Bad faith prosecution or harassment make abstention inappropriate even where these requirements are met. Younger, 401 U.S. at 47-49, 91 S.Ct. at 752-53. Similarly, satisfaction of the three requirements will not support abstention where a statute is flagrantly and patently violative of constitutional prohibitions. Id. at 53-54, 91 S.Ct. at 755-56. 1. Ongoing State Proceedings At the time the district court abstained, World Famous had yet to appeal the adverse judgments in World Famous II and World Famous III to the state Supreme Court. Failure to exhaust state appellate remedies satisfies the requirement that there be “ongoing judicial proceedings” in order to justify federal abstention. See Huffman v. Pursue, Ltd., 420 U.S. 592, 608-09, 95 S.Ct. 1200, 1210, 43 L.Ed.2d 482 (1975). A First Amendment challenge" }, { "docid": "5264042", "title": "", "text": "if the district court’s dismissal of the Latino residents’ complaint was based on intervention principles, it erred. IV A In the alternative, Governor Wilson contends that the district court could have based its dismissal on Younger abstention, just as it dismissed the original plaintiffs pursuant to Younger. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). We review de novo a decision to abstain based on the Younger doctrine. Kenneally v. Lungren, 967 F.2d 329, 331 (9th Cir.1992). Younger abstention recognizes the interest in federal-state comity and the limited role courts of equity have. Younger, 401 U.S at 44-45, 91 S.Ct. at 750-51. It may apply to civil proceedings. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 & n. 12, 107 S.Ct. 1519, 1528 n. 12, 95 L.Ed.2d 1 (1987); Fresh Int’l Corp. v. Agricultural Labor Bd., 805 F.2d 1353, 1356-57 (9th Cir.1986). Younger abstention is appropriate when: 1) there is an ongoing state judicial proceeding, 2) the proceeding implicates important state interests, and 3) the proceeding offers an adequate opportunity to raise constitutional issues. Middlesex Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Partington v. Gedan, 880 F.2d 116, 121 (9th Cir.1989); Beltran v. California, 871 F.2d 777, 781 (9th Cir.1988). However, the “task in [potential abstention] cases ... is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest of justifications’ that can suffice ... to justify the surrender of that jurisdiction.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-26, 103 S.Ct. 927, 942, 74 L.Ed.2d 765 (1983). In light of these principles, the application of Younger to the intervenors was incorrect. Younger requires that “in the course of [the ongoing state proceedings] the federal plaintiff would have a full and fair opportunity to litigate his constitutional claim.” Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 627, 106 S.Ct. 2718, 2723, 91 L.Ed.2d" }, { "docid": "383157", "title": "", "text": "its constitutional grant of power to regulate the practice of law. See Ohio Const, art. IV, § 2(B)(1)(g). Promulgation and enforcement of the rules are plainly exercises of Ohio’s sovereign power. Under Bates, state action immunity exists and plaintiffs’ antitrust claims are barred. B. INJUNCTIVE AND DECLARATORY RELIEF 1. Younger Abstention Plaintiffs sought to enjoin the state disciplinary proceedings and to have the proceedings declared unconstitutional. Defendants respond that the district court properly abstained under Younger. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court should not enjoin a pending state criminal proceeding unless “the danger of irreparable loss is both great and immediate.” Id. at 45, 91 S.Ct. at 751 (quoting Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926)). The Supreme Court extended Younger “to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Comm. v. Garden State Bar Ass'n 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). See Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979); Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05, 95 S.Ct. 1200, 1208-09, 43 L.Ed.2d 482 (1975). In Middlesex, a case similar to the present appeal, a lawyer challenged disciplinary proceedings of the New Jersey Bar Association by filing suit in federal court. He contended that the proceedings violated his First Amendment rights. Middlesex, 457 U.S. at 427-29, 102 S.Ct. at 2518-20. The Court held that the federal district court correctly dismissed the case based on Younger. As part of its analysis, the Court enunciated a three-part inquiry for the application of Younger abstention to state bar disciplinary hearings: [FJirst, do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges. Id. at 432, 102 S.Ct. at 2521 (emphasis omitted). The similarities between the present appeal" }, { "docid": "16181890", "title": "", "text": "The doctrine of Younger abstention, which reflects the principle of comity inherent in our federal system of government, provides much stronger support for abstention in this case. In Younger, the Supreme Court held that a district court erred in enjoining a state criminal prosecution when the plaintiffs federal claim could also have been raised as a defense in the state prosecution. Younger, 401 U.S. at 53-54, 91 S.Ct. 746. In so ruling, the Court specifically noted the absence of any evidence of “bad faith, harassment, or any other unusual circumstance that would call for equitable relief.” Id. at 54, 91 S.Ct. 746. It also suggested that abstention might not be appropriate if the statute the state was seeking to enforce was “flagrantly and patently violative of express constitutional prohibitions.” Id. at 53, 91 S.Ct. 746. The Supreme Court has extended Younger to forbid the injunction of certain state civil enforcement actions. In Huffman v. Pursue, Ltd., 420 U.S. 592, 594, 603-5, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the Court held that Younger applied to a federal action that sought to interfere with a state civil proceeding to abate the showing of obscene movies. In Trainor v. Hernandez, 431 U.S. 434, 447, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), the Court ruled that Younger prevented a district court from enjoining an allegedly unconstitutional civil action brought by a state to recover fraudulently obtained welfare payments. As the Court later explained, “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). We have also applied Younger outside the context of state criminal prosecutions. In Fuller v. Ulland, 76 F.3d 957 (8th Cir.1996), we explained that “Younger directs federal courts to abstain from hearing cases when (1) there is an ongoing state judicial proceeding which (2) implicates important state interests, and when (3) that proceeding affords an adequate opportunity to raise the federal questions presented.” Fuller, 76 F.3d at 959. In this case, the action" }, { "docid": "533115", "title": "", "text": "7, 61 L.Ed.2d 321 (1978) (due process clause applies to a state suspension or revocation of a driver’s license). A. Abstention The Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 2d 669 (1971) held that federal courts should abstain from hearing suits to enjoin state criminal proceedings, even if those proceedings are based on an allegedly unconstitutional statute. In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), this doctrine was extended to state civil proceedings where important state interests are involved. Id. at 604-605, 95 S.Ct. at 1208-1209. See also Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). It is not clear if the doctrine applies to all state civil proceedings. Pennzoil Company v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 1527 n. 12, 95 L.Ed.2d 1 (1987). The doctrine is applicable to state administrative agency proceedings. Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986). However, the federal plaintiff should have a full and fair opportunity for his federal constitutional claim to be heard. Id., 106 S.Ct. at 2723. The Supreme Court has stated: The importance of the state interest in the pending state judicial proceedings and in the federal case calls Younger abstention into play. So long as the constitutional claims of respondents can be determined in the state proceedings and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal court should abstain. Middlesex Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 435, 102 S.Ct. 2515, 2522-2523, 73 L.Ed.2d 116 (1982). Plaintiffs claim that the lack of an opportunity to present a constitutional defense to the administrative suspension presents the extraordinary circumstance which makes this case an exception to the application of the Younger doctrine. In Ohio Civil Rights Commission, supra, the Supreme Court explained the history and rationale of the Younger doctrine. In Younger v. Harris, we held that a federal court should" }, { "docid": "23422814", "title": "", "text": "did have subject matter jurisdiction to hear appellants’ facial challenges to the constitutionality of Proposition 115. II. Younger Abstention The fundamental issue confronting us is whether Younger v. Harris, 401 U.S. 37, 91 5.Ct. 746, 27 L.Ed.2d 669 (1971), required the district court to abstain from hearing appellants’ challenges to Proposition 115. In Younger, the Supreme Court announced a doctrine that federal courts should not enjoin pending state criminal prosecutions absent a showing of the state’s bad faith or harassment, or a showing that the statute is “ ‘flagrantly and patently violative of express constitutional prohibitions.’” Id. at 53-54, 91 S.Ct. at 755 (citations omitted). Younger premises its holding on principles of equity and comity. A basic doctrine of equity jurisprudence is that courts of equity “should not act to restrain a criminal proseeution[ ] when the moving party has an adequate remedy at law and will not suffer irreparable injury.” Id. at 43-44, 91 S.Ct. at 750. As a matter of comity, federal courts should maintain respect for state functions and should not unduly interfere with the state’s good faith efforts to enforce its own laws in its own courts. Id. A. Requirements for Younger Abstention Our circuit has stated that Younger abstention is appropriate if “(1) there are ongoing state judicial proceedings, (2) the proceedings implicate important state interests, and (3) there is an adequate opportunity in the state proceedings to raise federal questions.” Gartrell Constr., 940 F.2d at 441 (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982)); Polykoff v. Collins, 816 F.2d 1326, 1332 (9th Cir.1987). We agree with the district court that these three requirements for abstention are all present in this case. The first requirement for Younger abstention — that there be ongoing state judicial proceedings — is clearly met because at the time the complaint was filed in federal court, the appellants were all subjects of pending criminal prosecutions in state court. The Supreme Court has held that Younger abstention applies to prevent federal intervention in a state judicial proceeding" }, { "docid": "10621803", "title": "", "text": "of jurisdiction, finding that Judge Squire’s ongoing state disciplinary proceedings required that the federal court abstain pursuant to the principles set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Judge Squire filed a second complaint on October 6, 2005, which was identical to the original complaint except that Lori J. Brown, the Assistant Disciplinary Counsel, was named as an additional defendant. The second complaint was accompanied by a motion for a temporary restraining order. Because the Board’s probable-cause hearing was set for October 7, the district court held an evidentiary hearing the evening of October 6. The court once again dismissed the complaint, finding that it lacked jurisdiction under Younger. Moreover, the court held that, even if Younger abstention were inappropriate, Judge Squire’s claim for temporary injunctive relief would fail on the merits. This timely appeal followed. II. ANALYSIS A. The district court’s decision The district court held that federal-court abstention was appropriate in this case under Younger v. Harris, 401 U.S. 37 (1971). In Younger, the Supreme Court held that absent “bad faith, harassment or any other unusual circumstance,” federal-court abstention is appropriate where a plaintiff invokes federal jurisdiction as a basis for obtaining injunctive relief against state-court criminal proceedings. Id. at 53-54, 91 S.Ct. 746. The Supreme Court later held that “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). B. Younger’s abstention criteria There are three requirements for proper invocation of Younger abstention: “(1) there must be on-going state judicial proceedings; (2) those proceedings must implicate important state interests; and (3) there must be an adequate opportunity in the state proceedings to raise constitutional challenges.” Sun Ref. & Mktg. Co. v. Brennan, 921 F.2d 635, 639 (6th Cir.1990) (citation omitted). “So long as the constitutional claims of respondents can be determined in the state proceedings and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance" } ]

[ { "docid": "22261434", "title": "", "text": "Amendments protect “against all governmental invasions.” Id. at 484, 85 S.Ct. 1678 (emphasis added). The “general right to privacy, ... Fourteenth Amendment liberty[,] and the other elements of those more general rights are obviously not protected against private infringement.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 278, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (emphasis in original) (internal citations omitted) (holding that only rights under the Thirteenth Amendment protect against private action); see also United States v. Young, 153 F.3d 1079, 1080 (9th Cir.1998) (“The Fourth Amendment limits searches conducted by the government, not by a private party, unless the private party acts as an ‘instrument or agent’ of the government.”); Rank v. Nimmo, 677 F.2d 692, 701 (9th Cir.1982) (“The Due Process Clause of the Fifth Amendment applies to actions of the federal government and not to individual activities of private actors[, unless] ... the action of the latter may be fairly treated as that of the [government] itself.”) (internal quotation marks omitted). Plaintiffs counter that AOL is a “quasi-public utility” that “involv[es] a public trust.” This claim is insufficient to hold that AOL is an “instrument or agent” of the government. There is nothing in the record that supports the contention that AOL should be considered a state actor. Accord Thomas v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C.Cir.1999) (holding that company in charge of Internet domain names is a private actor); Cyber Promotions, Inc. v. American Online, Inc., 948 F.Supp. 436, 443-44 (E.D.Pa.1996) (holding that AOL is not a state actor). We conclude that Plaintiffs did not sufficiently plead constitutional claims against AOL; thus, these claims cannot support federal jurisdiction over the request for declaratory and injunctive relief. Plaintiffs asserted that federal jurisdiction was based also on violations of federal copyright law. Federal jurisdiction under the Copyright Act, 17 U.S.C. §§ 101-810, exists: if and only if the complaint is for a remedy expressly granted by the Act, e.g., a suit for infringement or for the statutory royalties for record reproduction ... ’ or asserts a claim requiring construction of the Act, ... or," } ]

[ { "docid": "16959151", "title": "", "text": "1983, plaintiff must first show that CSC, a private party, was “acting under color of state law” at the time he allegedly violated plaintiffs constitutional rights. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir.1996). “Actions by a private party are deemed state action if ‘there is a sufficiently close nexus between the State and the challenged action’ that the actions by the private parties ‘may be fairly treated as that of the State itself.’ ” Chan v. City of New York, 1 F.3d 96, 106 (2d Cir.1993) (citations omitted). “The purpose of [the nexus] requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Id. No nexus may be found unless a private actor has willfully participated in a joint activity with the State or its agents. Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 551-52 (2d Cir.2001). “In the absence of such a nexus, a finding of state action may not be premised on the private entity’s creation, funding, licensing, or regulation by the government. Nor is a private entity a state actor merely because its conduct is authorized by a state law, where its conduct is not compelled by the state.” Id. (citing Loce v. Time Warner Entm’t Advance/Newhouse P’ship, 191 F.3d 256, 266 (2d Cir.1999)). The mere fact that CSC is regulated by the FCC does not mean that it is a state actor. Defendant cites Baldwin v. Appalachian Power Co., 556 F.2d 241 (4th Cir.1977), for the proposition that Cablevision is acting under the color of state law for the purposes of § 1983 because it is clothed with and exercising a power usually exercised only by the state — the power to take property. In Baldwin, a public service corporation (in that case, an electrical company) was delegated the power of eminent domain under West Virginia law so that it could construct and maintain electric lines." }, { "docid": "4620926", "title": "", "text": "a liberal construction of his pleadings. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir.2007). Nonetheless, “this court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (brackets and internal quotation marks omitted). A. 42 U.S.C. § 1983 “To state a claim under [42 U.S.C.] § 1983 a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Private persons may be said to act “ ‘under color of state law” if they are “jointly engaged with state officials in the challenged action.” Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). But “private conduct that is not fairly attributable to the State is simply not actionable under § 1983, however discriminatory or wrongful the conduct is.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.1995) (citations and internal quotation marks omitted). Mr. Hall’s § 1983 claim is premised on the alleged denial of his rights to free speech and equal protection under the Fourteenth Amendment. A violation of the Fourteenth Amendment requires action by the state. In the context of § 1983 claims based on violations of the Fourteenth Amendment, as is the situation here, the under-color-of-state-law requirement in § 1983 is equivalent to the Fourteenth Amendment’s state-action requirement. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 n. 8, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Although several defendants are local governments or persons holding public office, the sole defendant on whose official position the complaint specifically relies is Mr. Witteman. Mr. Hall appears to concede that his § 1983 claim depends entirely on Mr. Witteman’s involvement in the defendants’ actions. His opening brief in this court states, “The essential theory behind Mr. Hall’s §" }, { "docid": "2620458", "title": "", "text": "Court’s ruling in Harbury. Plaintiffs’ motions to amend their complaints to specify the defense they claim they will be prevented from rebutting and the remedies they allege they cannot obtain as a result of defendants’ misconduct is, therefore, granted. III. Section 1983 Conspiracy The City, the PBA, and the individual officer defendants also seek dismissal on the ground that plaintiffs have not adequately alleged a conspiracy pursuant to 42 U.S.C. § 1983. Plaintiffs’ complaints allege: 1) an agreement; 2) with the express objectives of violating plaintiffs’ due process right to be free of state created danger and to deny plaintiffs’ access to the courts; and 3) at least one act in furtherance of each objective. I therefore find that plaintiffs have adequately alleged Section 1983 conspiracies in relation to both of their substantive federal claims. See, e.g., Ciambriello v. County of Nassau, 292 F.3d 307, 324-325 (2d Cir.2002)(setting forth the three elements of a Section 1983 conspiracy claim). IV. Joint Action The PBA defendants further assert that plaintiffs have not alleged joint action with the City sufficient to hold the former liable for the alleged violations of plaintiffs’ due process rights. In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege injury by either a state actor or a private party acting under color of state law. Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.1992). Private parties act under color of state law when they are “willful participants in joint activity with the State or its agents.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Of course, a “merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity.” Ciambriello, 292 F.3d at 324. In this case, however, plaintiffs have alleged specific agreements between the City and the PBA to prevent police officers from facing legal sanction for their illegal activities, namely, the provision of immediate crime-scene counseling by PBA representatives and delayed interrogation of" }, { "docid": "15712480", "title": "", "text": "in an action at law, suit in equity, or other proper proceeding for redress. To prevail on a 42 U.S.C. § 1983 claim, the claimant must prove conduct by a person acting under color of state law deprived the claimant of a federal constitutional or federal legal right. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986) (to state a cause of action under § 1983, a plaintiff must “plead that (1) the defendants acted under color of state law and (2) deprived plaintiff of rights secured by the Constitution or federal statutes”); West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Courts must liberally construe pro se litigants’ complaints. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). A person acts “under color of state law” for purposes of 42 U.S.C. § 1983 if he “exercise[s] power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” West, 487 U.S. at 49, 108 S.Ct. 2250 (citation omitted). “[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.” Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.1997) (citation omitted). Munoz’s allegations against Sheriff Kolender appear to describe only conduct under color of state law. Munoz complains, among other things, his detention in San Diego County Jail does not comply with California state law and regulations. Violations of state law standing alone do not afford a basis for relief in federal civil rights litigation. An essential element of any 42 U.S.C. § 1983 claim is that the challenged conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. § 1983; see West, 487 U.S. at 49, 108 S.Ct. 2250; WMX Techs., Inc. v. Miller, 197 F.3d, 367, 372 (9th Cir.1999). However, state regulations can sometimes give rise to liberty interests that are protected by the Fourteenth Amendment. Meachum v. Fano, 427" }, { "docid": "13752827", "title": "", "text": "BE DISMISSED WITH RESPECT TO DEFENDANT TAKE IT FROM ME, INC. BECAUSE THE PLAINTIFF FAILS TO ALLEGE THAT TAKE IT FROM ME, INC. WAS ACTING “UNDER COLOR OF STATE LAW.” Taken as § 1983 retaliation case, the plaintiffs cause with respect to defendant Take It From Me, Inc. must be dismissed. Under 42 U.S.C. § 1983, a plaintiff may seek redress when a person “acting under color of state law” deprives the prisoner of rights guaranteed by the Constitution or under federal law. 42 U.S.C.A. § 1983. Here, the plaintiffs Complaint makes no allegations that Take It From Me, Inc., a private not-for-profit organization, whose members are private citizens, was acting “under color of state law.” In fact, the defendant has stated unequivocally that Take It From Me, Inc. is a “private business entity,” not entitled to representation by government counsel. See Plaintiffs Motion To Deny Defendants Representation By the Corporation Counsel’s Correctional Litigation Section at 1. Nor would anything in the Complaint support a finding that the private organization’s conduct is “fairly attributable” to the state. See West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (stating that if the defendant’s conduct satisfies the requirement of state action; it also satisfies “under of color of state law” requirements for § 1983 since it is conduct “fairly attributable” to the state) . (citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935, 102 S.Ct. 2744, 2752, 73 L.Ed.2d 482 (1982)). Accordingly, the-plaintiffs cause as to the defendant Take It From Me, Inc. must be dismissed. III. THE COURT SHALL GRANT SUMMARY judgment IN FAVOR OF DEFENDANTS WILLIAM E. MOSELEY AND DAVID D. ROACH BECAUSE BOTH DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY. To state a claim for retaliation, the plaintiff must allege that “he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.1994) (per curiam) (citing Rizzo v. Dawson, 778 F.2d 527, 530-31 (9th Cir.1985)); see Thornburgh v." }, { "docid": "6976201", "title": "", "text": "relief can be granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The Court has noted: [A] plaintiff must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia. Schaefer v. Las Cruces Public School Dist., 716 F.Supp.2d 1052, 1063 (D.N.M.2010)(Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Supreme Court has made clear, that in alleging a § 1983 action against a government agent in the agent’s individual capacity, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft, v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). LAW REGARDING SUBSTANTIVE DUE-PROCESS CLAIMS The Fourteenth Amendment’s Due Process Clause provides that “no State shall ... deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV, § 1. In general, state actors may be held liable under § 1983 only for their own affirmative acts that violate a plaintiffs due process rights, and not for third parties’ acts. See Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir.2008) (citing DeShaney v. Winnebago County of Dep’t of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). “[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors.” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. at 195, 109 S.Ct. 998. The Due Process Clause is not a guarantee of a minimal level of safety and security. See DeShaney v. Winnebago County Dep’t of" }, { "docid": "6892819", "title": "", "text": "a guilty plea in state court to possession of the same. Under these circumstances, Defendant Rice is entitled to the benefit of qualified immunity because no statutory or constitutional right of Plaintiff was violated by Defendant Rice. Because Plaintiff has not alleged facts that make out a violation of his statutory or constitutional rights, the Court need not proceed to the second step of the qualified immunity analysis to determine whether that right was clearly established at the time of the challenged conduct. See Scott v. Harris, 550 U.S. 372, 377, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). B. Plaintiffs Claim Against Defendant Mohring Fails 1. Defendant Mohring Did Not Act Under Color of State Law Plaintiff alleges that his sister, Defendant Mohring, acted under color of state law by cooperating with Defendant Rice, searching his residence, seizing, his cell phone, and viewing its contents, all in violation of 42 U.S.C. § 1983. (Doc. No. 8 at 2-3, 13-14, 19-20). To establish a claim under Section 1983, a plaintiff must allege a violation of a constitutional right and must show that the alleged violation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). A private actor can be considered a state actor in one of two ways. “The first category involves an activity that is significantly encouraged by the state or in which the state acts as a joint participant.” Dickerson v. DeSimone, Inc., No. 09-1551, 2011 WL 3273228, at *2 (E.D.Pa. Aug. 1, 2011) (quoting Leshko v. Servis, 423 F.3d 337, 340 (3d Cir.2005)). “The second category of cases involves an actor that is controlled by the state, performs a function delegated by the state, or is entwined with government policies or management.” Id. In order to establish the requisite level of joint participation and collaboration, a plaintiff must aver the existence of a “pre-arranged plan [between the police and a private entity] by which the police substituted the judgment of [a] private part[y] for their own official authority.” Cruz v. Donnelly, 727" }, { "docid": "13966839", "title": "", "text": "allegations ... to raise a right to relief above the speculative level.” Id. A court may consider “any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference ... and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit” on a motion to dismiss. ATSI Commc’ns, Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir.2007) (citation omitted). III. DISCUSSION A. Section 1983 Claims Section 1983 creates no substantive rights; rather, it provides a “mechanism for enforcing a right or benefit established elsewhere.” Morris-Hayes v. Bd. of Educ., 423 F.3d 153, 159 (2d Cir.2005) (citation omitted). “To state a claim under § 1983, a [p]laintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). For the purposes of a § 1983 action, private parties act under color of state law if (1) the state compelled the private party’s conduct, (2) the private party acted jointly with a state, or (3) the private party fulfilled a role that is traditionally a public function performed by a state. See Sybalski v. Indep. Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir.2008). A private party also acts under color of state law if it conspires with state actors to deprive someone of his or her constitutional rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). There must be “such a close nexus between the State and the challenged [private] action that seemingly private behavior may be fairly treated as that of the State itself.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003) (citations and internal quotation marks omitted). Baez’s allegations are insufficient to state a claim that either JetBlue or Malabet acted under color of state law. Baez contends that Defendants acted under color" }, { "docid": "5261874", "title": "", "text": "other proper proceeding for redress ... In order to state a claim under § 1983, therefore, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Action taken “under color” of law “has consistently been treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.” Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (quoting United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)). In this case, plaintiff has elected not to sue the state official, Relin, but names a private entity, Gannett. Gannett contends, therefore, that the complaint does not allege facts showing state action. Plaintiff has only alleged that Gannett, a private actor, made decisions about what it wished to print in its own newspaper. There are circumstances, however, in which a private entity can be found to have acted under color of state law. A private actor “acts under color of state law when the private actor is a willful participant in joint activity with the State or its agents.” Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir.2002). See Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Price, 383 U.S. at 794, 86 S.Ct. 1152. On a motion to dismiss for failure to state a claim, dismissal is not warranted unless “no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); accord In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69 (2d Cir.), cert. denied, 534 U.S. 1071, 122 S.Ct. 678, 151 L.Ed.2d 590 (2001). At the same" }, { "docid": "6892820", "title": "", "text": "constitutional right and must show that the alleged violation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). A private actor can be considered a state actor in one of two ways. “The first category involves an activity that is significantly encouraged by the state or in which the state acts as a joint participant.” Dickerson v. DeSimone, Inc., No. 09-1551, 2011 WL 3273228, at *2 (E.D.Pa. Aug. 1, 2011) (quoting Leshko v. Servis, 423 F.3d 337, 340 (3d Cir.2005)). “The second category of cases involves an actor that is controlled by the state, performs a function delegated by the state, or is entwined with government policies or management.” Id. In order to establish the requisite level of joint participation and collaboration, a plaintiff must aver the existence of a “pre-arranged plan [between the police and a private entity] by which the police substituted the judgment of [a] private part[y] for their own official authority.” Cruz v. Donnelly, 727 F.2d 79, 80 (3d Cir.1984). The Third Circuit has noted that “the critical issue ... is whether the state, through its agents or laws, has established a formal procedure or working relationship that drapes private actors with the power of the state.” Cruz, 727 F.2d at 82. Here, Defendant Mohring is not a law enforcement agent or any other kind of state actor. To establish a claim for illegal search and seizure against Defendant Mohring, a private citizen, Plaintiff must show that she acted under color of state law. To do so, Plaintiff must allege plausible facts to show that Defendant Mohring was involved in conspiratorial or concerted action with Defendant Rice, a law enforcement agent. The facts alleged in the Complaint, however, do not establish that Defendant Mohring engaged in any concerted action with Defendant Rice. As noted above, Plaintiff was a parolee who was subjected to certain conditions for the duration of his parole. A parolee does not enjoy “the absolute liberty to which every citizen is entitled, but only [a] conditional liberty" }, { "docid": "23471225", "title": "", "text": "action under 42 U.S.C. S 1983 \"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged violation was committed by a person acting under color of state law.\" West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The plaintiff must establish both that 1) she was deprived of a right secured by the Constitution or laws of the United States and 2) the deprivation was caused by a person acting under color of state law. See Simescu v. Emmet County Dep't of Soc. Services, 942 F.2d 372, 374 (6th Cir.1991). If a plaintiff fails to make a showing on any essential element of a § 1983 claim, it must fail. See id. at 375. 1. Whether St. Eward acted under color of law. St. Eward is a Detroit police officer. It is undisputed that she did not herself arrest Redding; Redding contends, however, that but for St. Eward’s alleged “false report” to the officers and her relationship with the police department in general, Redding would not have been arrested. The question therefore becomes whether St. Eward was acting under color of law when she called 911. We conclude that she was not. The United States Supreme Court has held that acting under color of state law requires that the defendant in a § 1983 action have exercised the power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” West, 487 U.S. at 49, 108 S.Ct. 2250. We have addressed the difficult question of whether a police officer is acting under color of law when, off duty, he acts as a private citizen. See Stengel v. Belcher, 522 F.2d 438 (6th Cir.1975). In Stengel, the officer was off duty, was out of uniform, was never identified as a police officer, and was socializing with friends at a bar. A fight broke out. The officer intervened and ultimately shot the three men involved" }, { "docid": "7757042", "title": "", "text": "the Court shall require Plaintiff to set out his apparent theory of the Administrator Defendants’ liability by amending Count III of the Amended Complaint as set forth in the preceding section, the Court shall not at this juncture dismiss Count III against the Administrator Defendants. C. Plaintiff Has Alleged Facts Sufficient to Satisfy the State Action Requirements of Section 1983 Defendants contend that even if the Administrator Defendants and the University are found to be directly liable under Section 1983, the Amended Complaint is still deficient because Plaintiff has failed to allege facts sufficient to “show that any of the Defendants acted under color of state law and that Georgetown’s public safety officers exercised their powers of arrest as Special Police Officers commissioned by the District of Columbia.” Defs.’ Mot. for Part. J. at 10. Defendants argue that on this basis, Plaintiffs Count III should be dismissed in its entirety. Section 1983 holds civilly liable persons who: [U]nder color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or' causes to be subjected, any citizen of the United States .... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.... 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). “To constitute state action, ‘the deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible,’ and ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.’ ” Id. at 49, 108 S.Ct. 2250 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). In order to commit an" }, { "docid": "7757043", "title": "", "text": "of Columbia, subjects, or' causes to be subjected, any citizen of the United States .... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.... 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). “To constitute state action, ‘the deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible,’ and ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.’ ” Id. at 49, 108 S.Ct. 2250 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). In order to commit an act under the color of law, an individual must be “clothed with the authority of state law.” United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). A state employee performing an official duty acts pursuant to state authority, and therefore acts under the color of law. See Screws v. United States, 325 U.S. 91, 107-08, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). However, even if a state employee does not act with the actual authority of the state, but merely purport to exercise its authority, he may be held liable for constitutional deprivation pursuant to Section 1983. Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964). The Supreme Court established a test to determine whether actions may be considered to be taken “under the color of law:” “[T]he inquiry must be whether there is sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State" }, { "docid": "7361555", "title": "", "text": "a question of fact. Id. at 383. “The [Supreme] Court has articulated a number of tests or factors to determine when state action is ‘significant.’ ” Id. at 382-383 (collecting cases). Under the joint action test, a private party acts under color of state law if “he is a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). Under the governmental nexus test, a private party acts under color of state law if “there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974); cf. Edmonson v. Leesville Concrete Co., — U.S. —, 111 S.Ct. 2077, 2082-84, 114 L.Ed.2d 660 (1991) (constitutional deprivation caused by private party involves state action if claimed deprivation resulted from exercise of a right or privilege having its source in state authority); West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 2258, 101 L.Ed.2d 40 (1988) (a private physician under contract with a state to provide medical services to inmates was a state actor for purposes of section 1983). Here the district court’s sua sponte dismissal was improper because Lopez’s complaint alleges that defendants Maryvale Samaritan Hospital (“Maryvale”) and Southwest Ambulance Service (“Southwest”) are under contract with the state of Arizona to provide medical services to indigent citizens. These allegations are sufficient to support a section 1983 action because under either the joint action or the government nexus analysis they set forth a claim that defendants Southwest and Mary-vale act under color of state law. See Edmonson, 111 S.Ct. at 2082-84; West, 487 U.S. at 54, 108 S.Ct. at 2258; Dennis, 449 U.S. at 27, 101 S.Ct. at 186; Jackson, 419 U.S. at 351, 95 S.Ct. at 453. Lopez also alleges that Southwest and Maryvale refused to provide medical services to him because of his indigent status." }, { "docid": "6163335", "title": "", "text": "other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an-action at law, suit in equity, or other proper proceeding for redress[J Id. (emphasis added). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). “To constitute a state action, the [alleged] deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the state is responsible[.]” Id. at 49, 108 S.Ct. 2250 (alterations added) (citation omitted). The party charged with the deprivation must be a person who is “clothed with the authority of state law,” United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), and “a person who may fairly be said to be a state actor,” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Thus, § 1983 only applies to state actors; it does not apply to federal officials acting purely under the color of federal law. See Williams v. United States, 396 F.3d 412, 414-15 (D.C.Cir.2005) (holding that a federal official making an arrest pursuant to state law cannot be sued under § 1983 because his authority to act comes from federal law, not state law). The BOP is a federal agency, see Pub.L. No. 71-218, 46 Stat. 325 (1930) (establishing the BOP’s responsibility to manage and regulate all federal penal and correctional institutions), and its Director necessarily performs his duties pursuant to federal law. Because the plaintiff does not allege that the defendants acted under color of state or District of Columbia law, the plaintiffs § 1983 claim must be dismissed against both the United States and against BOP’s Director in his" }, { "docid": "5261873", "title": "", "text": "1983. Plaintiff alleges that Gannett, through its officers and employees, entered into an agreement with a state actor, Relin, to deny plaintiff her First Amendment rights to freedom of speech and freedom of the press, and that, acting in concert with that state actor, Gannett did deny plaintiff those constitutional rights. Plaintiff also alleges that Gannett, acting in concert with Relin, punished plaintiff in retaliation for her exercise of her First Amendment rights. Plaintiff seeks compensatory and punitive damages, and attorney’s fees. DISCUSSION I. Defendant’s Motion to Dismiss A. “Under Color of State Law” Requirement-General Principles Section 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... In order to state a claim under § 1983, therefore, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Action taken “under color” of law “has consistently been treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.” Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (quoting United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)). In this case, plaintiff has elected not to sue the state official, Relin, but names a private entity, Gannett. Gannett contends, therefore, that the complaint does not allege facts showing state action. Plaintiff has only alleged that Gannett, a private actor, made decisions about what it wished to print in its own newspaper." }, { "docid": "1638766", "title": "", "text": "Defendant Lueker next argues that she, as an allegedly private actor, is an improper defendant to Arceo’s § 1983 claims. To state a claim under § 1983, Arceo must allege that a person acting under color of state law committed the claimed deprivation. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” Id. at 49, 108 S.Ct. at 2255 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). Here, Arceo concedes that Lueker does not fall under the traditional definition of acting under color of state law. Instead, Arceo seeks to employ the “joint action” standard to establish Lueker’s § 1983 liability. In order to hold a private actor liable under § 1983, “it must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual’s conduct is in some other way chargeable to the State.” Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir.1996) (quoting Lee v. Town of Estes Park, 820 F.2d 1112, 1114 (10th Cir.1987)). Under the “joint action” test, a § 1983 claim may arise when some private party acts “in concert” with (i.e., conspires with) state officials in effecting a particular deprivation of constitutional rights. See Anaya v. Crossroads Managed Care Systems, Inc., 195 F.3d 584, 596 (10th Cir.1999); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453 (10th Cir.1995). In other words, the private party and state officials must “share a common, unconstitutional goal.” See Anaya, 195 F.3d at 596 (quoting Gallagher, 49 F.3d at 1454 (quoting Cunningham v. Southlake Ctr. for Mental Health, Inc., 924 F.2d 106, 107 (7th Cir.1991))). The mere acquiescence of a state official in the actions of a private party is not sufficient." }, { "docid": "4964497", "title": "", "text": "an employee of the State of West Virginia or the Division of Corrections. He is a private physical therapist to whom Plaintiff was referred. Plaintiff has made no allegations that Defendant Hibbs conspired with state actors to provide substandard medical care. Plaintiffs allegations regarding Hibbs merely claim medical malpractice. Such a claim is not cognizable in an action brought pursuant to 42 U.S.C. § 1983. E.g. Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir.1990). In order for Plaintiff to recover under 42 U.S.C. § 1983, his civil rights must have been violated by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157 n. 7, 16 L.Ed.2d 267 (1966). State action is present if the conduct allegedly causing a deprivation of federal rights may be fairly attributed to the state. Lugar, 457 U.S. at 937, 102 S.Ct. at 2753. “Fair attribution” is determined by a two-factor test. First, the deprivation must be caused by the exercise of a right or privilege created by the state or by rule of conduct imposed by the state or by a person for whom the state is responsible. Second, the party charged with the deprivation of federal rights must be a state actor, such as a state official, a person acting in concert with a state official, or a person whose conduct is otherwise attributable to the state. Id.; see also Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). A private defendant acts under the color of state law if “he is a willful participant in joint action with the state or its agents.” Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980); Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984). Upon reviewing the matters alleged in Plaintiffs Complaint, as well as the applicable" }, { "docid": "14313340", "title": "", "text": "state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (emphasis added; citation omitted). Because Cornish’s complaint claims retaliatory discharge, vio-lative of the First and Fourteenth Amendments, the first prong of § 1983 is satisfied. Therefore, at issue is whether CSC was acting “under color of state law” when it terminated Cornish’s employment, with the critical inquiry being whether “the alleged infringement of federal rights [can be] fairly attributable to the State”. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (quotation omitted). Restated, “[m]ere[] private conduct, no matter how discriminatory or wrongful”, is excluded from § 1983’s reach. Richard v. Hoechst Celanese Chem. Group, Inc., 355 F.3d 345, 352 (5th Cir.2003), cert. denied, — U.S. -, 125 S.Ct. 46, 160 L.Ed.2d 201 (2004) (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)); see also Rendell-Baker, 457 U.S. at 844, 102 S.Ct. 2764 (White, J., concurring) (“[T]he critical factor is ... [whether] the • employment decision was itself based upon some rule of conduct or policy put forth by the State.” (emphasis added)). The Supreme Court has utilized a number of tests for deciding whether a private actor’s conduct can be fairly attributable to the State. See Richard, 355 F.3d at 352 (summarizing tests); Bass v. Parkwood, 180 F.3d 234, 241-43 (5th Cir.1999) (same). The “public function test” examines whether the private entity performs a function which is “exclusively reserved to the State”. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Under the “state compulsion test”, a private actor’s conduct is attributable to the State when it exerts coercive power over the private entity or provides significant encouragement. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 170-71, 90" }, { "docid": "16959150", "title": "", "text": "6. Plaintiff is entitled to summary judgment dismissing Defendants’ Sixth Counterclaim, for violation of Public Service Law § 228. Although neither party has moved for summary judgment dismissing the Sixth Counterclaim asserted against CSC, it must be dismissed as a matter of law. The Sixth Counterclaim contends that Public Service Law § 228 prevents Cablev-ision from being the sole and exclusive provider of video services at the Building and compels it to permit the use of its Equipment for Digitech’s service under § 228(1). For the reasons discussed at length above, this claim fails. WTA and Digitech were and are perfectly free to negotiate with and remunerate CSC for the use of its equipment, provided CSC is willing to entertain such negotiations. And WTA can place whatever restrictions it wants on Digitech if it permits Digitech to install equipment at 66 Crisfield. But those are all matters of private contract, not statute. 7. CSC is not a state actor, so Defendants’ Seventh Counterclaim must be dismissed. To prevail in a claim under 42 U.S.C. § 1983, plaintiff must first show that CSC, a private party, was “acting under color of state law” at the time he allegedly violated plaintiffs constitutional rights. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir.1996). “Actions by a private party are deemed state action if ‘there is a sufficiently close nexus between the State and the challenged action’ that the actions by the private parties ‘may be fairly treated as that of the State itself.’ ” Chan v. City of New York, 1 F.3d 96, 106 (2d Cir.1993) (citations omitted). “The purpose of [the nexus] requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Id. No nexus may be found unless a private actor has willfully participated in a joint activity with the State or its agents. Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 551-52" } ]

[ { "docid": "22648500", "title": "", "text": "of all means of self-protection. It forbade his access to a weapon. N. J. Dept, of Corrections Standards 251.4.a.201 and .202. It forbade his fighting back. Standards 251.4.a.002, .003, and .004. It blocked all avenues of escape. The State forced Davidson to rely solely on its own agents for protection. When threatened with violence by a fellow inmate, Davidson turned to the prison officials for protection, but they ignored his plea for help. As a result, Davidson was assaulted by another inmate. He suffered stab wounds on his face and body as well as a broken nose that required surgery. The Court nevertheless excuses the prison officials from liability under 42 U. S. C. § 1983, holding that because the officials were “merely negligent in causing the injury” there was no “deprivation” of liberty without due process of law. Ante, at 347. It relies for this proposition and result on the easier companion case, Daniels v. Williams, ante, p. 327, which overrules in part Parratt v. Taylor, 451 U. S. 527 (1981). In Daniels, also a § 1983 suit, the Court holds that a pretrial detainee, allegedly injured when he slipped on a pillow negligently left on the jail stairs by a deputy, as a matter of law suffered no deprivation under the Fourteenth Amendment. While I concur in the judgment in Daniels, I do not join the Court in extending that result to this case. It is one thing to hold that a commonplace slip and fall, or the loss of a $23.50 hobby kit, see Parratt v. Taylor, supra, does not rise to the dignified level of a constitutional violation. It is a somewhat different thing to say that negligence that permits anticipated inmate violence resulting in injury, or perhaps leads to the execution of the wrong prisoner, does not implicate the Constitution’s guarantee of due process. When the State incarcerated Daniels, it left intact his own faculties for avoiding a slip and a fall. But the State prevented Davidson from defending himself, and therefore assumed some responsibility to protect him from the dangers to which he was" } ]

[ { "docid": "5163052", "title": "", "text": "the Due Process Clause of the Fourteenth Amendment. Where a government official’s act causing injury to life, liberty or property is merely negligent “no procedure for compensation is constitutionally required.” Parratt, 451 U.S. at 548 [101 S.Ct. at 1919] (POWELL, J., concurring in result (footnote omitted). 106 S.Ct. at 666. The Court emphasized its narrow interpretation of those subject matters which legitimately can claim ancestry in the Constitution: That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of pro-tectable legal interests. The enactment of tort claim statutes, for example, reflect the view that injuries caused by such negligence should generally be redressed. It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns, (footnotes omitted). 106 S.Ct. at 666. In Davidson v. Cannon, — U.S. -, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), another prison case, the plaintiff, an inmate, filed a § 1983 action against prison administrators alleging that they had abridged his right not to be subjected to cruel and unusual punishment as proscribed by the Eighth Amendment, and his right not to be deprived of personal security without due process of law as protected by the Fourteenth Amendment. Factually, the plaintiff asserted that he had sent a written message to a prison administrator informing the administrator that he had been physically threatened by a fellow inmate and that he feared assault from the inmate whose name was specified. Prison administrators basically ignored the message. The plaintiff was soon thereafter assaulted by the specified inmate by use of a fork, resulting in wounds to plaintiffs face, neck, head and body, and a broken nose. While citing its decision in Daniels, supra, the Court again held that the defendants’ inattention to the written message did not rise beyond a level of conduct which could be described as negligent. The Court held that even though serious injury resulted from" }, { "docid": "1758506", "title": "", "text": "is a result of negligent action does not rise to a level which is protected by the Fourteenth Amendment: To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries old principle of due process of law. 106 S.Ct. at 665. The Court, at 106 S.Ct. 666, made it clear that only those rights which are traditionally derived from an uncluttered and pristine reading of the Constitution, its Bill of Rights, and its other Amendments will trigger Fourteenth Amendment protection: Our Constitution deals with the large concerns of the governors and the gov erned, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that “would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States,” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976), quoted in Parratt v. Taylor, 451 U.S., at 544, 101 S.Ct., at 1917. The Court in Daniels concluded that the actions of the defendants in leaving a pillow case on the floor did not rise to the level of conduct which implicates the Due Process Clause of the Fourteenth Amendment: Where a government official’s act causing injury to life, liberty or property is merely negligent “no procedure for compensation is constitutionally required.” Parratt, 451 U.S. at 548 [101 S.Ct. at 1919] (POWELL, J., concurring in result) (footnote omitted). 106 S.Ct. at 666. The Court emphasized its narrow interpretation of those subject matters which can legitimately claim ancestry in the Constitution: That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectable legal interests. The enactment of tort claim statutes, for example, reflect the view that injuries caused by such negligence shall generally be redressed. It is no reflection on either the" }, { "docid": "5786491", "title": "", "text": "tort claim statutes, for example, reflect the view that injuries caused by such negligence should generally be redressed. It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns, (footnotes omitted). 106 S.Ct. at 666. In Davidson, supra, another prison case, the plaintiff, an inmate, filed a § 1983 action against prison administrators alleging that they had abridged his right not to be subjected to cruel and unusual punishment as proscribed by the Eighth Amendment, and his right not to be deprived of personal security without due process of law as protected by the Fourteenth Amendment. Factually, the plaintiff asserted that he had sent a written message to a prison administrator informing the administrator that he had been physically threatened by a fellow inmate and that he feared assault from the inmate whose name was specified. Prison administrators ignored the message. The plaintiff was soon thereafter assaulted by the specified inmate by use of a fork, resulting in wounds to plaintiff’s face, neck, head and body, and caused a broken nose. While citing its decision in Daniels, supra, the Court again held that the defendants’ inattention to the written message did not rise beyond a level of conduct which could be described as negligent. The Court held that even though serious injury resulted from defendants’, conduct, the plaintiff was not protected by the Due Process Clause of the Fourteenth Amendment. Davidson, 106 S.Ct. at 670. The plaintiff in Davidson attempted to distinguish and isolate the substantive claim (not to be deprived of personal security) from the procedural claim by arguing that his claim was “purely procedural,” thus circumventing the requirement that plaintiff must show conduct beyond negligence. The Court reaffirmed that such an argument must fail because the procedural aspect of the Fourteenth Amendment is only triggered if any underlying substantive right is at issue: In an effort to limit the potentially broad sweep of his claim, petitioner emphasizes that he “does not ask this Court to read the Constitution as" }, { "docid": "18763797", "title": "", "text": "fourteenth amendment. Under these circumstances, the district court should have determined whether the amended complaint sufficiently alleged the infliction of cruel and unusual punishment resulting from the defendants’ failure to protect Ruefly against the assault by inmate Scottie Lowe. As we have recently observed, \"[constitutional claims of convicted prison inmates that they have suffered physical harm at the hands either of prison officials or of fellow-inmates against whom prison officials failed to provide protection, are most appropriately assessed under the eighth amendment....” Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir.1987). It is settled law under the eighth amendment that a prisoner’s “ ‘conditions of confinement’ may constitute cruel and unusual punishment because such conditions ‘are part of the penalty that criminal offenders pay for their offenses against society.’ ” Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). As we have recognized, “[t]he eighth amendment protects a convicted inmate from physical harm at the hands of fellow inmates resulting from the deliberate or callous indifference of prison officials to specific known risks of such harm....” Pressly, 816 F.2d at 979. Mere negligent conduct on the part of prison officials who fail to protect a prisoner from a risk of harm posed by fellow inmates does not constitute a violation of the eighth amendment’s prohibition against cruel and unusual punishment. As the Supreme Court has observed, [t]o be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. ... It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.... Whitley, 106 S.Ct. at 1084. With these principles in mind, we next consider whether Ruefly’s amended complaint stated a claim for violation of the eighth amendment’s cruel and unusual punishments clause upon which relief could be granted. The relevant question is whether Ruefly has alleged that the" }, { "docid": "18817274", "title": "", "text": "that their eighth amendment rights were violated by prison officials’ negligent failure to protect them from attacks by fellow inmates, the Fifth Circuit has held that section 1983 “gives a remedy ... for negligent acts which result in injuries to the prisoner.” Fox v. Sullivan, 539 F.2d 1065, 1066 (5th Cir.1976), later app., 558 F.2d 235 (1977); Parker v. McKeithen, 488 F.2d 553, 556 (5th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974). Similarly, the Court of Appeals for the Fourth Circuit held in Withers v. Levine, 615 F.2d 158, 162 (4th Cir.) (prison officials’ negligent failure to protect prisoners from aggressive sexual assaults), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980), that [w]hen there is present in a prison or in an identifiable portion of it, a pervasive risk of harm to all prisoners, or to an identifiable group of them, the constitutional prohibition against cruel and unusual punishment requires that prison officials exercise reasonable care to provide reasonable protection from such unreasonable risk of harm. Given the pervasive and unreasonable risk of harm, negligence by prison officials in their performance of their duty of care is a violation of the constitutional right and actionable under § 1983. But while the Fourth Circuit stated that “negligence by a state official under some circumstances may itself violate a constitutionally protected right,” id., it also recognized that “the Constitution of the United States does not lend its protection to every victim of a common law tort by state officials and employees.” Id. Thus, although negligence by prison officials may constitute cruel and unusual punishment proscribed by the eighth amendment, a close reading of the supra authorities reveals that negligent conduct by state officials violates the eighth amendment in only certain circumstances. For example, the Fourth Circuit emphasized that a prisoner could recover for prison officials’ negligent failure to protect him from violence or sexual assault from his fellow inmates only when there was “a pervasive risk of harm to inmates from other prisoners ....” Withers v. Levine, 615 F.2d at 161, quoting," }, { "docid": "22200215", "title": "", "text": "few seconds. Q. What did you ask him? A. \"Are you having any problems in the mod?” Q. What did he say? A. \"No.” Q. Anything else you recall being asked? A. No, sir. Trial Transcript at 107. . Section 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... . This case does not present the question whether gross negligence or recklessness gives rise to a due process violation outside of the jail or prison context. Although the Supreme Court has not yet decided that question, we have. See Fargo v. City of San Juan Bautista, 857 F.2d 638, 639, 641 (9th Cir.1988) (holding that police officer could be held liable under section 1983 for accidently shooting handcuffed arrestee in the back if the jury found that his conduct amounted to gross negligence or recklessness). . The due process clause provides a different standard for pretrial detainees than does the eighth amendment's proscription against “cruel and unusual punishment” for convicted prisoners because \"[a] person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has had only a 'judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.’ ” Bell v. Wolfish, 441 U.S. at 536, 99 S.Ct. at 1872 (quoting Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975)). Thus, while the eighth amendment proscribes cruel and unusual punishment for convicted inmates, the due process clause of the fourteenth amendment proscribes any punishment of pretrial detainees. However, convicted prisoners’ liberty interests are also protected by the due process clause and the state’s failure to protect such persons against assaults by other prisoners results in a constitutional violation" }, { "docid": "10570148", "title": "", "text": "MEMORANDUM AND ORDER SHARP, Chief Judge. This case was tried without a jury on August 23, 1982 at the Indiana State Prison. The following memorandum constitutes this Court’s findings of fact and conclusions of law in conformance with the requirements of Rule 52 of the Federal Rules of Civil Procedure. The plaintiff, Otis Burr, an inmate at the Indiana State Prison, filed this action pursuant to 42 U.S.C. § 1983. Plaintiff contends that he sustained personal injuries as a result of prison correctional authorities’ alleged indifference to inmate violence and that the defendants’ actions constitute a violation of the Eighth Amendment’s proscription against the infliction of cruel and unusual punishment. Specifically, plaintiff alleges that he had requested on numerous occasions to be transferred from the Indiana State Prison to the Pendleton Reformatory, for the reason that other inmates at the prison had threatened his life, but that his requests for transfer had gone unheeded. As a result of the prison administration’s failure to act on plaintiff’s requests, Mr. Burr claims that he has been attacked twice by fellow inmates and has been forced to dispense sexual favors in order to secure a measure of protection against future assaults. At the commencement of the proceedings, plaintiff asked the Court why he was not being represented by an attorney. Taking plaintiff’s question to be tantamount to a motion for the appointment of counsel under 28 U.S.C. § 1915(d), this Court denied the motion. Maclin v. Freake, 650 F.2d 885 (7th Cir. 1981), sets forth guidelines for the appointment of counsel in this type of case. In Maclin, the Court of Appeals for the Seventh Circuit held that, while the decision to appoint counsel rests within the sound discretion of the district court, such discretion is not unfettered. Id., at 886. Certain factors must be weighed by the Court including, but not limited to, the merits of the claim, the nature and complexity of the factual and legal issues, and the mental or physical ability of the plaintiff to gather the facts necessary to adequately present his case. Id., at 887-88. In this" }, { "docid": "1758508", "title": "", "text": "breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns, (footnotes omitted). 106 S.Ct. Ct. at 666. In Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), another prison case, the inmate plaintiff filed a § 1983 action against prison administrators alleging that they had abridged his right not to be subjected to cruel and unusual punishment as proscribed by the Eighth Amendment, and his right not to be deprived of personal security without due process of law as protected by the Fourteenth Amendment. Factually, the plaintiff asserted that he had sent a written message to a prison administrator informing the administrator that he had been physically threatened by a fellow inmate and that he feared assault from the inmate whose name was specified. Prison administrators basically ignored the message. The plaintiff was soon thereafter assaulted by the specified inmate by the use of a fork which resulted in wounds to plaintiff’s face, neck, head, and body, and caused a broken nose. While citing its decision in Daniels, supra, the Court again held that the defendant’s inattention to the written message did not rise beyond a level of conduct which could be described as negligent. The Court held that even though serious injury resulted from defendants’ conduct, the plaintiff was not protected by the Due Process Clause of the Fourteenth Amendment. Davidson, 106 S.Ct. at 670. The plaintiff in Davidson attempted to distinguish and isolate the substantive claim (not to be deprived of personal security) from the procedural claim by arguing that his claim was “purely procedural,” thus circumventing the requirement that plaintiff must show conduct beyond negligence. The Court reaffirmed that such an argument must fail because the procedural aspect of the Fourteenth Amendment is only triggered if any underlying substantive right is at issue: In an effort to limit the potentially broad sweep of his claim, petitioner emphasizes that he “does not ask this Court to read the Constitution as an absolute guarantor of his liberty from assault by a fellow" }, { "docid": "22651691", "title": "", "text": "required.” Parratt, swpra, at 548 (Powell, J., concurring in result) (emphasis added). That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectible legal interests. The enactment of tort claim statutes, for example, reflects the view that injuries caused by such negligence should generally be redressed. It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns. In support of his claim that negligent conduct can give rise to a due process “deprivation,” petitioner makes several arguments, none of which we find persuasive. He states, for example, that “it is almost certain that some negligence claims are within § 1983,” and cites as an example the failure of a State to comply with the procedural requirements of Wolff v. McDonnell, supra, before depriving an inmate of good-time credit. We think the relevant action of the prison officials in that situation is their deliberate decision to deprive the inmate of good-time credit, not their hypothetically negligent failure to accord him the procedural protections of the Due Process Clause. But we need not rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care in order to hold, as we do, that such conduct does not implicate the Due Process Clause of the Fourteenth Amendment. Petitioner also suggests that artful litigants, undeterred by a requirement that they plead more than mere negligence, will often be able to allege sufficient facts to support a claim of intentional deprivation. In the instant case, for example, petitioner notes that he could have alleged that the pillow was left on the stairs with the intention of harming him. This invitation to “artful” pleading, petitioner contends, would engender sticky (and needless) disputes over what is fairly pleaded. What’s more, requiring complainants to allege something more than negligence would raise serious questions about what “more” than negligence — intent," }, { "docid": "6500295", "title": "", "text": "and the plaintiff in Daniels was not arguing that his due process rights would have been violated even if fair procedures had been available (i.e., even if he had been able to obtain a complete recovery for his damages) under state law. Rather, he was contending that the deprivation of his liberty interest was “without due process of law” because the state did not provide adequate post-deprivation procedures. Similarly, the plaintiff in Davidson asserted a procedural, not a substantive, due process claim. In that case, the plaintiff was an inmate who claimed that prison officials had negligently failed to protect him from a fellow inmate who attacked him. The Court wrote: [The plaintiff] emphasizes that he “does not ask this Court to read the Constitution as an absolute guarantor of his liberty from assault from a fellow prisoner, even if that assault is caused by the negligence of his jailers.” Brief for Petitioner 17. Describing his claim as “one of procedural due process, pure and simple,” id., at 14, all he asks is that [the state] provide him a remedy. 474 U.S. at 348, 106 S.Ct. at 670 (emphasis added). Justice Stevens’ concurrence also emphasized that the claims in both Daniels and Davidson concerned procedural, not substantive, due process. He wrote: I do not believe petitioners have raised a colorable violation of “substantive due process.” Rather, ... Daniels and Davidson attack the validity of the procedures that Virginia and New Jersey, respectively, provide for prisoners who seek redress for physical injury caused by the negligence of corrections officers. 474 U.S. at 340 & n. 16, 106 S.Ct. at 679 & n. 16. Thus, it seems clear that neither Daniels nor Davidson was a substantive due process case. Moreover, neither Daniels nor Davidson provided any extended or novel discussion of substantive due process. Dan iels devoted one sentence to the topic, see 474 U.S. at 331-32, 106 S.Ct. at 664-66, and Davidson did not mention it at all. Despite the fact that Daniels and Davidson were not substantive due process cases and had little to say about substantive due process, Bello" }, { "docid": "1016067", "title": "", "text": "alia, “psychological injury to some prisoners.” In addition, the magistrate correctly noted that to obtain relief an inmate need not be the victim of an actual attack, but rather must suffer from the reasonable fear of inmate assaults. Withers, supra; Woodhous, supra. Since under Rhodes conditions at the prison which, “although not physically barbarous, involve the unnecessary and wanton infliction of pain” are prohibited under the eighth amendment, Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)), the magistrate’s requirement that fear of attack re-suit in significant mental pain to be of constitutional dimensions is proper. The plaintiffs also challenge the magistrate’s statement that the fear amounting to mental pain must be inflicted recklessly or wantonly and be “totally without peno-logical justification.” That portion of the magistrate’s order is as follows: Nevertheless, assuming that an inmate establishes that his fear of assaults has produced significant mental distress and psychological impairment to produce “pain,” it does not automatically follow that he has been subjected to cruel and unusual punishment. He must also show that the pain was inflicted recklessly or wantonly____ Moreover, the pain must, itself, be “totally without penological justification.” (citations omitted). Both of these standards are set forth in Rhodes v. Chapman, 452 U.S. at 346, 101 S.Ct. at 2399. The inmates argue that requiring them to show reckless or wanton infliction of pain ignores our decision in Withers, which determined that negligence by prison officials is a violation of the constitutional right and actionable under § 1983. That determination was not without some qualification, however. In Withers we recognized that: Surely the Constitution of the United States does not lend its protection to every victim of a common law tort by state officials and employees ... [b]ut negligence by a state official under some circumstances may itself violate a constitutionally protected right; when it does, it is actionable under § 1983____ When there is present in a prison or in an identifiable portion of it, a pervasive risk of harm to all" }, { "docid": "5786489", "title": "", "text": "that there is no requirement of a showing of the defendant’s “state of mind”. The Court concluded that the unintentional loss of a liberty, a right, property, or personal injury resulting from negligent action does not rise to a level which is protected by the Fourteen Amendment: To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries old principle of due process of law. 106 S.Ct. at 665. The Court, at 106 S.Ct. 666, made it clear that only those rights which are traditionally derived from an uncluttered and pristine reading of the Constitution, its Bill of Rights and Amendments will trigger Fourteenth Amendment protections: Our constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that “would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States,” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976), quoted in Parratt v. Taylor, 451 U.S., at 544, 101 S.Ct., at 1917. The Court in Daniels concluded that the actions of the defendants of leaving a pillow case on a floor did not rise to the level of conduct which implicates the Due Process Clause of the Fourteenth Amendment. Where a government official’s act causing injury to life, liberty or property is merely negligent “no procedure for compensation is constitutionally required.” Parratt, 451 U.S. at 548, 101 S.Ct. at 1919 (POWELL, J., concurring in result) (footnote omitted). 106 S.Ct. at 666. The Court emphasized its narrow interpretation of those subject matters which can legitimately claim ancestry in the Constitution: That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectable legal interests. The enactment of" }, { "docid": "5786490", "title": "", "text": "be superimposed upon whatever systems may already be administered by the States,” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976), quoted in Parratt v. Taylor, 451 U.S., at 544, 101 S.Ct., at 1917. The Court in Daniels concluded that the actions of the defendants of leaving a pillow case on a floor did not rise to the level of conduct which implicates the Due Process Clause of the Fourteenth Amendment. Where a government official’s act causing injury to life, liberty or property is merely negligent “no procedure for compensation is constitutionally required.” Parratt, 451 U.S. at 548, 101 S.Ct. at 1919 (POWELL, J., concurring in result) (footnote omitted). 106 S.Ct. at 666. The Court emphasized its narrow interpretation of those subject matters which can legitimately claim ancestry in the Constitution: That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectable legal interests. The enactment of tort claim statutes, for example, reflect the view that injuries caused by such negligence should generally be redressed. It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns, (footnotes omitted). 106 S.Ct. at 666. In Davidson, supra, another prison case, the plaintiff, an inmate, filed a § 1983 action against prison administrators alleging that they had abridged his right not to be subjected to cruel and unusual punishment as proscribed by the Eighth Amendment, and his right not to be deprived of personal security without due process of law as protected by the Fourteenth Amendment. Factually, the plaintiff asserted that he had sent a written message to a prison administrator informing the administrator that he had been physically threatened by a fellow inmate and that he feared assault from the inmate whose name was specified. Prison administrators ignored the message. The plaintiff was soon thereafter assaulted by the specified inmate by use of a fork," }, { "docid": "22651690", "title": "", "text": "by the States,’” Paul v. Davis, 424 U. S. 693, 701 (1976), quoted in Parratt v. Taylor, 451 U. S., at 544. The only tie between the facts of this case and anything governmental in nature is the fact that respondent was a sheriff’s deputy at the Richmond city jail and petitioner was an inmate confined in that jail. But while the Due Process Clause of the Fourteenth Amendment obviously speaks to some facets of this relationship, see, e. g., Wolff v. McDon nell, swpra, we do not believe its protections are triggered by lack of due care by prison officials. “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner,” Estelle v. Gamble, 429 U. S. 97, 106 (1976), and “false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.” Baker v. McCollan, 443 U. S. 137, 146 (1979). Where a government official’s act causing injury to life, liberty, or property is merely negligent, “no procedure for compensation is constitutionally required.” Parratt, swpra, at 548 (Powell, J., concurring in result) (emphasis added). That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectible legal interests. The enactment of tort claim statutes, for example, reflects the view that injuries caused by such negligence should generally be redressed. It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns. In support of his claim that negligent conduct can give rise to a due process “deprivation,” petitioner makes several arguments, none of which we find persuasive. He states, for example, that “it is almost certain that some negligence claims are within § 1983,” and cites as an example the failure of a State to comply with the procedural requirements of Wolff v. McDonnell, supra, before depriving an inmate of good-time credit. We think the relevant action of" }, { "docid": "18763796", "title": "", "text": "of his eighth amendment right to be free from cruel and unusual punishment. Ruefly sought compensatory and punitive damages from the defendants. The district court dismissed the amended complaint on the ground that Ruefly had, at most, alleged negligence on the part of the defendants, which would not support a claim for deprivation of constitutional rights under § 1983. In reaching this result, the district court relied upon Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), in which the Supreme Court held that mere negligence on the part of prison officials cannot constitute a deprivation of life, liberty, or property within the meaning of the due process clause of the fourteenth amendment. We think that the district court’s reliance on Daniels was misplaced, because Ruefly’s amended complaint did not allege deprivation of life, liberty, or property under the due process clause of the fourteenth amendment. Rather, Ruefly alleged that the defendants’ conduct had deprived him of his rights under the eighth amendment, as made applicable to the states by the fourteenth amendment. Under these circumstances, the district court should have determined whether the amended complaint sufficiently alleged the infliction of cruel and unusual punishment resulting from the defendants’ failure to protect Ruefly against the assault by inmate Scottie Lowe. As we have recently observed, \"[constitutional claims of convicted prison inmates that they have suffered physical harm at the hands either of prison officials or of fellow-inmates against whom prison officials failed to provide protection, are most appropriately assessed under the eighth amendment....” Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir.1987). It is settled law under the eighth amendment that a prisoner’s “ ‘conditions of confinement’ may constitute cruel and unusual punishment because such conditions ‘are part of the penalty that criminal offenders pay for their offenses against society.’ ” Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). As we have recognized, “[t]he eighth amendment protects a convicted inmate from physical harm at" }, { "docid": "22146254", "title": "", "text": "process is required, they must also determine the extent to which the minimum standards identified in this opinion need to be supplemented or clarified. The judiciary cannot avoid its ultimate responsibility for interpreting the constitutional requirements of due process. Certainly that responsibility cannot be delegated to prison authorities. But neither should their expertise nor their assistance in accurately identifying and evaluating the interests at stake be ignored. These cases represent a stage in the development of an extremely important phase of constitutional law. It is appropriate that the development proceed with full deliberation. See Sostre v. McGinnis, 442 F.2d 178, 197 (2d Cir. 1971). We therefore set aside the decrees in both cases and remand for further proceedings on the question of relief. C. Gutierrez’s Eighth Amendment Claim. There is no question about the fact that Gutierrez was severely injured by Bobby Bright, a fellow inmate, but it is equally clear that he has not alleged a federal claim against Bright. It is not contended that Bright was acting under color of state law, either because he was carrying out a specific order of a correction officer or because he had been granted certain authority which enabled him to harm the plaintiff. Bright was not a “trusty” authorized to supervise fellow inmates. Cf. Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971). The assault committed by Bright was a common law tort; he.did not violate § 1983. The theory of Gutierrez's claim against the defendant prison officials is that they are responsible for subjecting him to cruel and unusual punishment in violation of his Eighth Amendment rights because they did not prevent the assault from taking place. Gutierrez claims that defendants Riley and Kennedy were negligent in their supervision of the Mechanical Store where the assault occurred and that defendants Pate, Poll-mann and Shifflet were négligent in not segregating Bright from the general prison population. The claims against the two groups of defendant officers are thus somewhat different, although both are predicated on the Eighth Amendment. That amendment may be violated either by the intentional infliction of punishment which is" }, { "docid": "5163053", "title": "", "text": "prison case, the plaintiff, an inmate, filed a § 1983 action against prison administrators alleging that they had abridged his right not to be subjected to cruel and unusual punishment as proscribed by the Eighth Amendment, and his right not to be deprived of personal security without due process of law as protected by the Fourteenth Amendment. Factually, the plaintiff asserted that he had sent a written message to a prison administrator informing the administrator that he had been physically threatened by a fellow inmate and that he feared assault from the inmate whose name was specified. Prison administrators basically ignored the message. The plaintiff was soon thereafter assaulted by the specified inmate by use of a fork, resulting in wounds to plaintiffs face, neck, head and body, and a broken nose. While citing its decision in Daniels, supra, the Court again held that the defendants’ inattention to the written message did not rise beyond a level of conduct which could be described as negligent. The Court held that even though serious injury resulted from defendants’ conduct, the plaintiff was not protected by the Due Process Clause of the Fourteenth Amendment. Davidson, 106 S.Ct. at 670. The plaintiff in Davidson attempted to distinguish and isolate the substantive claim (not to be deprived of personal security) from the procedural claim by arguing that his claim was “purely procedural,” thus circumventing the requirement that plaintiff must show conduct beyond negligence. The Court reaffirmed that such an argument must fail because the procedural aspect of the Fourteenth Amendment is only triggered if any underlying substantive right is at issue: In an effort to limit the potentially broad sweep of his claim, petitioner emphasizes that he “does not ask this Court to read the Constitution of an absolute guarantor of his liberty from assault by a fellow prisoner, even if that assault is caused by the negligence of his jailers.” Brief for Petitioner 17. Describing his claim as one of “procedural due process, pure and simple,” Id., at 14, all he asks is that New Jersey provide him a remedy. But the Fourteenth Amendment" }, { "docid": "581783", "title": "", "text": "a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Id. The Parratt opinion, however, is not controlling here. First of all, the comments regarding the negligence standard are merely dictum, as the case was dismissed because petitioner had an adequate remedy at state law. Secondly, the case involved a prisoner’s due process rights under the Fourteenth Amendment rather than rights protected by the Eighth Amendment. Justice Powell in his concurring opinion affirmed that Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), is still good law. In Estelle, according to Justice Powell, the Court held that “[‘] deliberate indifference to a prisoner’s serious illness or injury [’] on the part of prison officials is sufficient to constitute an [‘] infliction [’] of cruel and unusual punishment under the eighth amendment.” Parratt, 451 U.S. at 547 n. 3, 101 S.Ct. at 1919 n. 3. (emphasis added). Justice Powell reasoned that the word infliction in the language of the Eighth Amendment indicates that a mental element is necessary before a violation will be found. The Eighth Circuit has recently followed this standard. In a case similar to plaintiff’s, inmates brought a 1983 suit against the prison superintendent, alleging that he failed to take reasonable steps to protect them from sexual assaults by other inmates. Martin v. White, 742 F.2d 469 (8th Cir.1984). The Court of Appeals ruled that “prison officials may be liable where they are ‘deliberately indifferent to ... a prisoner’s constitutional rights, either because they acted with reckless disregard of his right to bé free from violent attacks by fellow inmates.’ ” Id. at 474 (citations omitted). In a recent case, the Eastern District of North Carolina applied a similar test. “[Although supervisory officials cannot be held liable on the basis of their employer-employee relationship, liability attaches where their own action or inaction amounts to gross negligence or deliberate indifference and is the proximate cause of the constitutional violation.” Spell v. McDaniel, 591 F.Supp." }, { "docid": "5163051", "title": "", "text": "old principle of due process of law. 106 S.Ct. at 665. The Court, at 106 S.Ct. 666, made it clear that only those rights which are traditionally derived from an uncluttered and pristine reading of the Constitution, its Bill of Rights and Amendments will trigger Fourteenth Amendment protection: Our Constitution deals with the large concerns of the governors and the gov erned, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that “would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States,” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976), quoted in Parratt v. Taylor, 451 U.S., at 544, 101 S.Ct., at 1917. The Court in Daniels concluded that the actions of the defendants of leaving a towel on a floor did not rise to the level of conduct which implicates the Due Process Clause of the Fourteenth Amendment. Where a government official’s act causing injury to life, liberty or property is merely negligent “no procedure for compensation is constitutionally required.” Parratt, 451 U.S. at 548 [101 S.Ct. at 1919] (POWELL, J., concurring in result (footnote omitted). 106 S.Ct. at 666. The Court emphasized its narrow interpretation of those subject matters which legitimately can claim ancestry in the Constitution: That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of pro-tectable legal interests. The enactment of tort claim statutes, for example, reflect the view that injuries caused by such negligence should generally be redressed. It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns, (footnotes omitted). 106 S.Ct. at 666. In Davidson v. Cannon, — U.S. -, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), another" }, { "docid": "1758507", "title": "", "text": "405 (1976), quoted in Parratt v. Taylor, 451 U.S., at 544, 101 S.Ct., at 1917. The Court in Daniels concluded that the actions of the defendants in leaving a pillow case on the floor did not rise to the level of conduct which implicates the Due Process Clause of the Fourteenth Amendment: Where a government official’s act causing injury to life, liberty or property is merely negligent “no procedure for compensation is constitutionally required.” Parratt, 451 U.S. at 548 [101 S.Ct. at 1919] (POWELL, J., concurring in result) (footnote omitted). 106 S.Ct. at 666. The Court emphasized its narrow interpretation of those subject matters which can legitimately claim ancestry in the Constitution: That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectable legal interests. The enactment of tort claim statutes, for example, reflect the view that injuries caused by such negligence shall generally be redressed. It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns, (footnotes omitted). 106 S.Ct. Ct. at 666. In Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), another prison case, the inmate plaintiff filed a § 1983 action against prison administrators alleging that they had abridged his right not to be subjected to cruel and unusual punishment as proscribed by the Eighth Amendment, and his right not to be deprived of personal security without due process of law as protected by the Fourteenth Amendment. Factually, the plaintiff asserted that he had sent a written message to a prison administrator informing the administrator that he had been physically threatened by a fellow inmate and that he feared assault from the inmate whose name was specified. Prison administrators basically ignored the message. The plaintiff was soon thereafter assaulted by the specified inmate by the use of a fork which resulted in wounds to plaintiff’s face, neck, head, and body, and" } ]

[ { "docid": "23468145", "title": "", "text": "exempt from entitlement to overtime payments under § 213 of the FLSA because she is employed in a professional capacity. They raised this issue for the first time in their motion for summary judgment filed on March 3, 1996, more than three months after filing their answer. Magana does not dispute the finding that nurses are “professionals” within the meaning of the FLSA. E.R. 167. She argues first that Defendants’ exemption argument is an affirmative defense that was not raised in their initial responsive pleading and was, therefore, waived. Magana further contends that, even if Defendants did not waive the exemption defense, she remains covered by the FLSA overtime provisions because the CNMI failed to establish that her PN II position meets the salary test used by courts to determine whether employees are exempt under § 213(a). We do not meet the merits of this contention because we agree that the Appellees initially waived their “professional capacity” FLSA defense by failing to plead it in a timely fashion, and because we conclude the district court erred by allowing the Defendants to raise the defense in a motion for summary judgment without first determining whether the delay caused prejudice to Maga-na. The FLSA requires covered employers to provide overtime compensation equal to one and one-half times the regular rate at which an employee is employed for hours worked in excess of a 40-hour work week. 29 U.S.C. § 207(a)(1). The Act exempts from the overtime provision “any employee employed in a bona fide executive, administrative, or professional capacity....” 29 U.S.C. § 213(a)(1). Exemptions to the FLSA are narrowly construed. Employers claiming an exemption have the burden of proving the allegedly exempt employees “fit plainly and unmistakably within [the exemption’s] terms.” Abshire v. County of Kern, 908 F.2d 483, 485-486 (9th Cir.1990) (alteration in original); Service Employees Int'l Union, Local 102 v. County of San Diego, 60 F.3d 1346, 1350 (9th Cir.1994). This court has held that the § 213(b) FLSA exemption claimed here is an affirmative defense that must be pleaded and proved by the defendant. Jones v. Giles, 741 F.2d" } ]

[ { "docid": "20837135", "title": "", "text": "the violations of the AWPA. Defenses presented after the close of discovery After the close of discovery and following the submission by the domestic farm-worker Plaintiffs of their motion for summary judgment, Defendants sought to assert as an affirmative defense the so-called “small business” exemption to the AWPA, 29 U.S.C. § 1803(2). 29 C.F.R. § 500.30(b). Under this provision, growers are excused from the AWPA’s requirements if they fall within the “man days” exemption available to small farms under the Fair Labor Standards Act. 29 U.S.C. § 1803(a)(2). The FLSA “man days” exemption applies to agricultural employers who did not use more than 500 man days of agricultural labor in any calendar quarter in preceding year. 29 U.S.C. § 213(a)(6)(A). See also 29 C.F.R. § 500.30(b) (incorporating the FLSA “man days” exemption into the AWPA). Defendants’ argument fails for several reasons. First, under Federal Rule of Civil Procedure 8(c), a claim of exemption is an affirmative defense that must be specifically pleaded or it will be deemed waived. See, e.g., Morrison v. Exec. Aircraft Refinishing, Inc., 434 F.Supp.2d 1314, 1318-19 (S.D.Fla.2005). Because Defendants failed to specifically plead this exemption in their answer, ECF No. 57, Defendants have waived the affirmative defense. While this Court may, in its discretion, allow a late amendment to raise an affirmative defense, it will not do so here. It would be prejudicial to Plaintiffs to permit an amendment after discovery has closed. To allow such eleventh-hour amendments without a compelling showing of cause would encourage great mischief by parties seeking to try cases by ambush contrary to the letter and spirit of the discovery rules. Second, even if Defendants were allowed to raise the small business exemption at this late date, Defendants have failed to establish their entitlement to its benefits. Because this exemption is an affirmative defense, Defendants have the burden of establishing the exemption at trial, Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974), and also on summary judgment. See Roca v. Alphatech Aviation Servs., Inc., 961 F.Supp.2d 1234, 1238-39 (S.D.Fla.2013); Klem v. Cnty. of" }, { "docid": "20832415", "title": "", "text": "principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.” 29 C.F.R. § 541.700(a). “The amount of time spent performing exempt work can be a useful guide in determining whether exempt work is the primary duty of an employee.” 29 C.F.R. § 541.700(b). “[Ejmployees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement” and will be exempt from the FLSA’s protections. Id. “A job title alone is insufficient to establish the exempt status of an employee. The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee’s salary and duties meet the requirements of the regulations in this part.” 29 C.F.R. § 541.2. FLSA exemptions are construed narrowly against the employer who seeks to assert them. Cleveland v. City of Los Angeles, 420 F.3d 981, 988 (9th Cir.2005) (noting that the FLSA is construed liberally in favor of employees). Further, an FLSA exemption will not be found except in contexts “plainly and unmistakably” within the given exemption’s terms and “spirit.” Id. An employer has the burden of proving that an employee fits “plainly and unmistakably” within the terms and spirit of an FLSA exemption.- M; see Coming Glass Works v. Brennan, 417 U.S. 188, 196-197, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (“[A]n exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof.”); Hertz v. Woodbury County, Iowa, 566 F.3d 775, 783 (8th Cir.2009) (“[T]he application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof.”). As an initial matter, Plaintiffs argue that the individual Defendants have waived their FLSA exemption defense because it was not asserted in their answer to the FAC, and because they will be prejudiced if the individual Defendants are" }, { "docid": "19784095", "title": "", "text": "barred because: 1) Plaintiffs were exempt from the FLSA’s overtime requirements under the federal administrative exemption; 2) Plaintiffs were exempt from the FLSA’s overtime requirements under the federal commission exemption; 3) Plaintiffs cannot seek federal overtime pay under Cal. Bus. Prof.Code § 17200; and 4) Plaintiffs cannot use an unfair competition claim under Cal. Bus. Prof.Code § 17200 to recover restitution for conduct that is lawful under California state wage and hour laws. See Doc. No. 82 at 2. 1. Federal Administrative Exemption Under 29 U.S.C. § 207(a)(1), all employers engaged in interstate commerce cannot employ an employee “for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed,” unless the employee is exempted from application of the FLSA. Exemptions are construed narrowly by the courts, and the employer bears the burden of proving that the employee is exempt from application of the FLSA. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960) (“We have held that these exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within the terms and spirit.”); see also Donovan v. Nekton, Inc., 703 F.2d 1148, 1151 (9th Cir.1983) (An “employer who claims an exemption from the FLSA has the burden of showing that the exemption applies.”). Defendant first states that Plaintiffs fail to plead an “independent claim under the FLSA.” Doc. No. 83 at 10. A review of Plaintiffs’ second amended com plaint, however, appears to sufficiently plead an independent claim under the FLSA. For example, in paragraph 12, the complaint cites to 29 U.S.C. § 201 that “an employee must be paid overtime, equal to 1.5 times the employee’s regular rate of pay, for all hours worked in excess of 40 per week.” Cplt. at 4. In light of the lenient pleading standards under Fed. R.Civ.P. 8(a), the complaint sufficiently gives fair notice" }, { "docid": "19900507", "title": "", "text": "the Guide’s standards, certain underwriters had some ability to make exceptions or variances to implement appropriate compensating factors. Whalen and Chase provide different accounts of how often underwriters made such exceptions. Under the Fair Labor Standards Act (FLSA), employers must pay employees overtime compensation for time worked in excess of forty hours per week. See 29 U.S.C. § 207(a). Whalen claims that he frequently worked over forty hours per week. A number of categories of employees are exempted from the overtime pay requirement. The exemptions are drawn along a number of lines demarcating the type of profession, job function, and other characteristics. One categorical exemption is for employees who work in a “bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). At the time of Whalen’s employment by Chase, Chase treated underwriters as exempt from the FLSA’s overtime requirements. Whalen sought a declaratory judgment that Chase violated the FLSA by treating him as exempt and failing to pay him overtime compensation. Both Whalen and Chase filed motions for summary judgment. The district court denied Whalen’s motions and granted Chase’s motion, dismissing Whalen’s complaint. This appeal followed. We review the district court’s ruling on a motion for summary judgment de novo, construing the evidence in favor of the non-moving party. See Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 621-22 (2d Cir.2008); Petrosino v. Bell Atl., 385 F.3d 210, 219 (2d Cir.2004). We may affirm the district court’s grant of summary judgment on any ground upon which the district court could have relied. See Santos v. Murdock, 243 F.3d 681, 683 (2d Cir.2001). Exemptions from the FLSA’s requirements “are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). The statute specifying that employees who work in “bona fide executive, administrative, or professional capacities]” are exempt from the FLSA overtime pay requirements does not define “administrative.” 29 U.S.C. § 213(a)(1). Federal regulations specify, however, that a" }, { "docid": "20832416", "title": "", "text": "988 (9th Cir.2005) (noting that the FLSA is construed liberally in favor of employees). Further, an FLSA exemption will not be found except in contexts “plainly and unmistakably” within the given exemption’s terms and “spirit.” Id. An employer has the burden of proving that an employee fits “plainly and unmistakably” within the terms and spirit of an FLSA exemption.- M; see Coming Glass Works v. Brennan, 417 U.S. 188, 196-197, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (“[A]n exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof.”); Hertz v. Woodbury County, Iowa, 566 F.3d 775, 783 (8th Cir.2009) (“[T]he application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof.”). As an initial matter, Plaintiffs argue that the individual Defendants have waived their FLSA exemption defense because it was not asserted in their answer to the FAC, and because they will be prejudiced if the individual Defendants are allowed to assert such a defense at this late stage of the litigation. While the general rule is that a defendant should assert affirmative defenses in its first responsive pleading, Fed.R.Civ.P. -8(c), the Ninth Circuit has “liberalized” the requirement that a defendant must raise affirmative defenses in their initial responsive pleading. Magana v. Com. of the Northern Mariana Islands, 107 F.3d 1436, 1446 (9th Cir.1997); see also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1023 (9th Cir.2010). In the Ninth Circuit, a defendant' “may raise an affirmative defense for the first time in a motion for summary judgment only if the delay does not prejudice the plaintiff.” Magana, 107 F.3d at 1446 (holding the district court erred in granting summary judgment for defendants without determining whether their delay in raising the FLSA exemption for employees “employed in a bona fide executive, administrative, or professional capacity” prejudiced the plaintiff). Here, the individual Defendants attempt to assert an FLSA exemption defense for the first time approximately two years and nine months after the complaint was amended" }, { "docid": "16583353", "title": "", "text": "of exemption 5 and exemption 7(C). Finally, the court concluded that the plaintiff had not substantially prevailed in the lawsuit and was not entitled to attorneys’ fees. II. Plaintiff first contends that the SEC waived the right to invoke certain FOIA exemptions by failing to include them in the first motion to dismiss and/or motion for summary judgment filed by the agency. Fed.R.Civ.P. 8(c) requires a defendant to allege all affirmative defenses in a responsive pleading and the failure to do so will normally result in waiver. Jones v. Miles, 656 F.2d 103, 107 n.7 (5th Cir. 1981). Plaintiff asserts that the SEC’s first motion for dismissal or summary judgment constituted the agency’s “responsive pleading” and that by failing to raise exemptions 4, 5 and 7(C) in the motion, the SEC waived the defenses. Because the original exemption in voked by the agency was withdrawn and all others waived, plaintiff states that the district court should have granted his motion for summary judgment and ordered the release of all documents. Although superficially attractive, plaintiff’s argument suffers from a fatal flaw. Neither a motion to dismiss nor a motion for summary judgment constitutes responsive pleadings for purposes of the federal rules. See McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979) (motion to dismiss not responsive pleading for purposes of Fed.R.Civ.P. 15); Hanraty v. Ostertag, 470 F.2d 1096, 1097 (10th Cir. 1972) (motion to dismiss not responsive pleading for purposes of Fed.R.Civ.P. 8); Miller v. American Export Lines, Inc., 313 F.2d 218 n.1 (2d Cir. 1963) (motion for summary judgment not responsive pleading for purposes of Fed.R.Civ.P. 15). The SEC, therefore, had no obligation to raise all applicable affirmative defenses in its motion to dismiss and/or motion for summary judgment. Accordingly, the failure to include all relevant exemptions in the “non-responsive” motion did not result in waiver. Plaintiff also seems to argue that the SEC waived certain FOIA exemptions by failing to file a timely answer to his complaint. The FOIA requires the Government to file an answer or “otherwise plead” to a complaint within 30 days. The SEC responded" }, { "docid": "8402541", "title": "", "text": "LOKEN, Circuit Judge. In this Fair Labor Standards Act (“FLSA”) case, plaintiffs are Airfield Operation Specialists (“AOSs”) at the Lambert-St. Louis International Airport who claim that the City of St. Louis violated FLSA by failing to pay them at time-and-one-half rates for hours worked in excess of forty per week. See 29 U.S.C. § 207(a). The City asserts that the AOSs are executive, administrative, or professional employees exempt from the overtime compensation requirements of § 207(a). See 29 U.S.C. § 213(a)(1). The district court initially granted summary judgment in favor of plaintiffs, concluding the City was collaterally estopped to assert this defense by an earlier decision of the Missouri State Board of Mediation. The City appealed, and we reversed. See Fife v. Bosley, 100 F.3d 87 (8th Cir.1996). On remand, the district court granted plaintiffs’ renewed motion for summary judgment. Defendants again appeal. Concluding the summary judgment record reveals disputed issues of material fact, we reverse and remand for trial. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1223 (8th Cir.1997) (standard of review). The Lambert Airport operates twenty-four hours a day, seven days a week, with a work force of 625 City employees and 21,600 airline employees. AOSs staff the Airport’s Operations and Communications Center, a unit created to be the eyes and ears of senior management at all times. During the period in question, an AOS who worked more than forty hours in a particular week had the choice of being paid for this overtime at his or her regular rate, or “banking” an hour of paid vacation time for each hour of overtime worked. In 1994, plaintiffs commenced this FLSA damage action for unpaid overtime, see 29 U.S.C. § 216(b), claiming they should have been paid for overtime at time-and-one-half rates. The City claims AOSs are “bona fide executive, administrative, or professional” employees exempt from FLSA’s overtime requirements under § 213(a)(1). This exemption is an affirmative defense on which an employer has the burden of proof. See Murray v. Stuckey’s, Inc., 50 F.3d 564, 566 (8th Cir.), cert. denied, 516 U.S. 863, 116 S.Ct. 174, 133" }, { "docid": "13372888", "title": "", "text": "by ERISA, the employee is entitled to presume that the employer’s actions indicate involvement sufficient to bring the plan within the ERISA framework”). See also Butero, 174 F.3d at 1213-14 (safe harbor not available where employer picked insurers, decided key terms, deemed certain employees ineligible to participate, incorporated terms into summary plan description, retained power to alter related features); Brundage-Peterson v. Compcare Health Services Insurance Corp., 877 F.2d 509, 511 (7th Cir.1989) (“An employer who creates by contract with an insurance company a group insurance plan and designates which employees are eligible to enroll in it is outside the safe harbor created by the Department of Labor regulation.”) Plaintiff has come forward with no facts from which an inference more favorable to her position on this issue could be drawn. Her attorney asserts in a memorandum of law that Plaintiff “owned” a “private [insurance] contract.” (Mem. of Law in Opp’n to Def.’s Mot. to Dismiss This Case at 1.) That assertion is belied by the Policy itself, which identifies Wyckoff as the sole policyholder. Nor is the fact that all premiums under the Policy were paid by employers determinative of the issue of ERISA coverage. There is no ERISA requirement that employees pay all expenses under employee welfare benefit plans. Plaintiffs argument for application of the exemption relies on speculation and wishful thinking rather than relevant law and evidence as required to defeat a summary judgment motion. The Court holds as a matter of law, based on the uncontro-verted evidence of record, that the Policy does not come within the safe harbor exemption from ERISA’s definition of employee benefit plan. Plaintiffs claim for benefits thus clearly involves an ERISA governed employee benefit plan. ERISA establishes a cause of action by a claimant “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C.A. § 1132(a)(1)(B) (West 1999). ERISA is intended to have a broad preemptive effect. See Pilot Life Insurance Co. v. Dedeaux," }, { "docid": "19900508", "title": "", "text": "denied Whalen’s motions and granted Chase’s motion, dismissing Whalen’s complaint. This appeal followed. We review the district court’s ruling on a motion for summary judgment de novo, construing the evidence in favor of the non-moving party. See Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 621-22 (2d Cir.2008); Petrosino v. Bell Atl., 385 F.3d 210, 219 (2d Cir.2004). We may affirm the district court’s grant of summary judgment on any ground upon which the district court could have relied. See Santos v. Murdock, 243 F.3d 681, 683 (2d Cir.2001). Exemptions from the FLSA’s requirements “are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). The statute specifying that employees who work in “bona fide executive, administrative, or professional capacities]” are exempt from the FLSA overtime pay requirements does not define “administrative.” 29 U.S.C. § 213(a)(1). Federal regulations specify, however, that a worker is employed in a bona fide administrative capacity if she performs work “directly related to management policies or general business operations” and “customarily and regularly exercises discretion and independent judgment.” 29 C.F.R. § 541.2(a). Regulations further explain that work directly related to management policies or general business operations consists of “those types of activities relating to the administrative operations of a business as distinguished from ‘production’ or, in a retail or service establishment, ‘sales’ work.” 29 C.F.R. § 541.205(a). Employment may thus be classified as belonging in the administrative category, which falls squarely within the administrative exception, or as production/sales work, which does not. Precedent in this circuit is light but provides the framework of our analysis to identify Whalen’s job as either administrative or production. In Reich v. State of New York, 3 F.3d 581 (2d Cir.1993), overruled by implication on other grounds by Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), we held that members of the state police assigned to the Bureau of Criminal Investigation" }, { "docid": "12980383", "title": "", "text": "dispute of material fact with respect to whether FLSA and its companionship exemption applied (a conclusion neither party contests), and concluded as a matter of law RHD was not entitled to judgment under that provision. In rejecting RHD’s asserted affirmative defense, the District Court held RHD could not, as a matter of law, meet its burden of proof. See Madison, 39 F.Supp.2d at 546. Holding RHD could not prevail as a matter of law, on what RHD apparently considered one of its strongest affirmative defenses, does not mean the court improperly granted summary judgment to plaintiffs. The District Court’s judgment left intact RHD’s other affirmative defenses (statute of limitations, laches, waiver, es-toppel, good faith) that RHD was free to pursue. Indeed, the court did not enter judgment for plaintiffs until nine months after denying in part RHD’s summary judgment motion. RHD appealed only after the parties stipulated to damages and prospective relief, and settled other claims. We see no violation of Rule 56. B. The FLSA Companionship Exemption 1. Interpreting “domestic service employment” The District Court held the FLSA companionship exemption did not apply to RHD’s Mandela and Visions employees. That provision excludes from FLSA minimum wage and maximum hours rules: [A]ny employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delineated by regulations of the Secretary) .... 29 U.S.C. § 213(a)(15). The statute does not define “domestic service employment.” To construe the exemption, the District Court relied on 29 C.F.R. § 552.3, which defines “domestic service” as services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed. The term includes employ-ees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs .... This listing is illustrative and not exhaustive. The District Court understood this regulation to mean the exemption applied only to employees who “perform household services in a private home.”" }, { "docid": "20832417", "title": "", "text": "allowed to assert such a defense at this late stage of the litigation. While the general rule is that a defendant should assert affirmative defenses in its first responsive pleading, Fed.R.Civ.P. -8(c), the Ninth Circuit has “liberalized” the requirement that a defendant must raise affirmative defenses in their initial responsive pleading. Magana v. Com. of the Northern Mariana Islands, 107 F.3d 1436, 1446 (9th Cir.1997); see also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1023 (9th Cir.2010). In the Ninth Circuit, a defendant' “may raise an affirmative defense for the first time in a motion for summary judgment only if the delay does not prejudice the plaintiff.” Magana, 107 F.3d at 1446 (holding the district court erred in granting summary judgment for defendants without determining whether their delay in raising the FLSA exemption for employees “employed in a bona fide executive, administrative, or professional capacity” prejudiced the plaintiff). Here, the individual Defendants attempt to assert an FLSA exemption defense for the first time approximately two years and nine months after the complaint was amended to assert FLSA claims. The Court finds that the individual Defendants’ unexplained, inordinate delay in raising this defense is prejudicial because Plaintiffs had no opportunity to conduct discovery on this issue. The individual Defendants could have raised their FLSA exemption defense long before the instant motion was filed in their answer to the FAC or in a motion to dismiss or motion for summary judgment. . Instead, they waited until this late juncture to provide Plaintiffs notice of the defense. The individual Defendants offer no justification for their failure to raise the defense in a timely manner. Under these circumstances,' the Court finds that the individual Defendants are prohibited from asserting an FLSA exemption defense. See Ulin v. Lovell’s Antique Gallery, 2010 WL 3768012, at *13 (N.D.Cal.2010) (prohibiting defendants from raising FLSA exemption defense for the first time at the summary judgment stage). Moreover, even if the individual Defendants were not prohibited from asserting an FLSA exemption defense, they have failed to sustain their burden to establish a genuine issue of material fact for trial." }, { "docid": "12120647", "title": "", "text": "ALVIN B. RUBIN, Circuit Judge: A wife seeks a refund of federal taxes, penalties, and interest paid by her husband with funds that belonged to her or to the community of property existing between them. She alleges that the taxes were erroneously and illegally assessed against and collected from her. The district court dismissed the suit for lack of subject matter jurisdiction because the wife lacked standing to sue under the statute she invoked, 670 F.Supp. 179. We affirm this judgment, for the district court correctly concluded that the statute on which the wife relies does not allow suit by a party other than the taxpayer against whom the taxes were assessed, at least when the IRS has not coerced the payment by the third party. Pursuant to 26 U.S.C. § 6672(a), the United States assessed a penalty against Thomas F. Snodgrass, the husband of Dorothy E. Snodgrass, for his alleged failure to pay certain federal income taxes and social security taxes. These taxes had been withheld from the employees of companies of which Thomas Snodgrass was an official, Latham Exploration Company, Inc. and companies associated with it. The Internal Revenue Service filed notices of tax liens against Snodgrass’s property, including the family home located at 722 Coach-light Road, Shreveport, Louisiana, which was property of the community of acquets and gains existing between him and his wife. Thereafter, Mr. and Mrs. Snodgrass sold the Coachlight Road property. In order to release the liens on the property and deliver a clear title, Snodgrass sent the net proceeds of the sale, approximately $51,-000, to the IRS. Mrs. Snodgrass seeks to recover one-half of the sum remitted, the proceeds of the sale of her undivided one- half interest in the property, amounting to $25,529.06. In the alternative, she contends that she is entitled to a refund of $7,500, which is equal to one-half of the homestead exemption. Because the United States, as a sovereign, cannot be sued without its consent, Mrs. Snodgrass seeks to find a waiver of the government’s immunity, and authority for her suit, in a statute that gives the district" }, { "docid": "20832418", "title": "", "text": "to assert FLSA claims. The Court finds that the individual Defendants’ unexplained, inordinate delay in raising this defense is prejudicial because Plaintiffs had no opportunity to conduct discovery on this issue. The individual Defendants could have raised their FLSA exemption defense long before the instant motion was filed in their answer to the FAC or in a motion to dismiss or motion for summary judgment. . Instead, they waited until this late juncture to provide Plaintiffs notice of the defense. The individual Defendants offer no justification for their failure to raise the defense in a timely manner. Under these circumstances,' the Court finds that the individual Defendants are prohibited from asserting an FLSA exemption defense. See Ulin v. Lovell’s Antique Gallery, 2010 WL 3768012, at *13 (N.D.Cal.2010) (prohibiting defendants from raising FLSA exemption defense for the first time at the summary judgment stage). Moreover, even if the individual Defendants were not prohibited from asserting an FLSA exemption defense, they have failed to sustain their burden to establish a genuine issue of material fact for trial. The only evidence relied upon by the individual Defendants in support of this defense are statements made in the declarations submitted by Plaintiffs in connection with the instant motion. See Defs.’ Mot. at 9. Specifically, the individual Defendants argue that Helton is an exempt “creative professional” and/or “executive” employee because he avers that he “was responsible for writing code to implement game features, as well as working with designers and other content creators to define features, requirements, and work-flow,” citing Helton Decl. ¶ 2. Additionally, the individual Defendants argue that Lowe is an exempt “creative professional” and/or “executive” employee because he avers that, “[a]s a Producer, [he] was responsible for overall project management for Defendants’ game title/project, including supervising and tracking assignments,” citing Lowe Decl. ¶ 2. Finally, the individual Defendants argue that Piccirillo is an exempt “creative professional” because she avers that, “as a Senior Technical Artist,” she “worked with designers, programmers, and artists, to ensure technical integrity of game assets being produced by Defendants,” citing Piccirillo Decl. ¶ 2. The individual Defendants do" }, { "docid": "20857574", "title": "", "text": "Argo-Teeh’s motion for summary judgment be denied. The magistrate, however, did not address Douglas’s claim for liquidated damages. Both parties filed objections to the magistrate’s recommendations. The district court overruled these objections and entered an order adopting the magistrate’s recommendations. Further, the district court ruled that Douglas was not entitled to liquidated damages under the FLSA. Both parties appeal the district court’s order. III. DISCUSSION A. Standard of Review We review de novo the district court’s grant of summary judgment. Moore v. Holbrook, 2 F.3d 697, 698 (6th Cir.1993). The decision to deny a motion for summary judgment, while ordinarily reviewed for an abuse of discretion, is reviewed de novo when it is based on the resolution of a legal issue rather than on the presence of a material issue of fact for trial. Garner v. Memphis Police Dep't, 8 F.3d 358, 363 (6th Cir.1993). B. The Fair Labor Standards Act and the Administrative Employee Exemption Section 7(a) of the FLSA requires an employer to compensate an employee who works over forty hours a week “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). This right to overtime pay cannot be waived during the course of collective bargaining. Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739-41, 101 S.Ct. 1437, 1444-45, 67 L.Ed.2d 641 (1981). Section 13(a) of the FLSA, however, entirely exempts from the overtime pay requirement any employee who is employed in a bona fide executive, administrative, or professional capacity. 29 U.S.C. § 213(a)(1). This exemption is to be “narrowly construed against the employers seeking to assert [it].” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960); Michigan Ass’n of Governmental Employees v. Michigan Dep’t of Corrections, 992 F.2d 82, 83 (6th Cir.1993). Application of the exemption is limited to those circumstances plainly and unmistakably within the exemption’s terms and spirit. Arnold, 361 U.S. at 392, 80 S.Ct. at 456. The employer bears the burden of proving that the exemption applies to the employee in question." }, { "docid": "12120648", "title": "", "text": "Snodgrass was an official, Latham Exploration Company, Inc. and companies associated with it. The Internal Revenue Service filed notices of tax liens against Snodgrass’s property, including the family home located at 722 Coach-light Road, Shreveport, Louisiana, which was property of the community of acquets and gains existing between him and his wife. Thereafter, Mr. and Mrs. Snodgrass sold the Coachlight Road property. In order to release the liens on the property and deliver a clear title, Snodgrass sent the net proceeds of the sale, approximately $51,-000, to the IRS. Mrs. Snodgrass seeks to recover one-half of the sum remitted, the proceeds of the sale of her undivided one- half interest in the property, amounting to $25,529.06. In the alternative, she contends that she is entitled to a refund of $7,500, which is equal to one-half of the homestead exemption. Because the United States, as a sovereign, cannot be sued without its consent, Mrs. Snodgrass seeks to find a waiver of the government’s immunity, and authority for her suit, in a statute that gives the district courts original jurisdiction of “[a]ny 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.” Although the language of this statute is susceptible of a broader interpretation, this court and several others have held that the statute permits only the taxpayer who has paid a tax to seek its refund, thus adopting in this instance as in others the policy of narrow construction of waivers of immunity. In Hofheinz v. United States, this court stated that § 1346(a)(1) is to be read “as merely authorizing the taxpayer, or perhaps someone claiming in the interest of a taxpayer, to sue to get back taxes which the taxpayer has wrongfully been required to pay.” Mrs. Snodgrass was not the “taxpayer” with respect to the taxes in question; her husband, against whom the taxes were" }, { "docid": "17686691", "title": "", "text": "had established the property as a homestead, but then removed herself from it for a continuous period of 17 years. The question is whether Debtor thereby abandoned her homestead and forfeited her right to claim it as exempt. The law does not favor abandonment of a homestead. Turner, 44 B.R. at 119. As the party objecting to the exemption, the Trustee has the burden of proof. Fed. R. Bankr.Proc. 4008(c). Physical removal of the debtor from the premises, however, constitutes prima facie evidence of abandonment. Farris v. Farmington Production Credit Association (In re Farris), 42 B.R. 388, 389 (Bankr.E.D.Mo.1984); Kaes v. Gross, 92 Mo. 647, 3 S.W. 840, 842 (1887) (“removal of a family from the homestead constitutes a prima facie case of abandonment, and raises a presumption against the claim of homestead which must be rebutted before such claim can successfully be asserted”); Snodgrass v. Copple, 131 Mo.App. 346, 111 S.W. 845, 846 (1908) (“The removal of the family from the homestead is prima facie evidence of abandonment; but it is not conclusive, and may be overcome by evidence showing that the removal was temporary and accompanied by an intention to return after the accomplishment of a specific purpose which prompted it”) In order to preserve the claim of homestead after physical removal, debtor must demonstrate an intention to return, which intention was formed at the time of removal. Schissler, 250 B.R. at 700; Duffey v. Willis, 99 Mo. 132, 12 S.W. 520, 521 (1889) (intention to return must be formed at the time of the removal from the premises). A vague and indefinite intention to return at some future time under certain conditions is not sufficient to prevent the removal from the premises from constituting an abandonment. Snodgrass, 111 S.W. at 846. Actual removal from the homestead, with no intention to return, amounts to forfeiture. Schissler, 250 B.R. at 700; Duffey, 12 S.W. at 521. In this instance, the Debtor failed to prove that she formed an intention to return to her property and use it as a homestead at the time she removed herself from it in" }, { "docid": "4070016", "title": "", "text": "Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960), the Supreme Court stated that exemptions to the FLSA are to be construed narrowly against the employers seeking to assert them. The Court was referring specifically to section 13 of the FLSA (29 U.S.C. § 213), which is titled “Exemptions.” The plaintiffs argue that § 203(o) is an exemption from the FLSA, notwithstanding the fact that it is in the definitions section (section 3 of the FLSA) and not in the exemptions section. The Fifth, Sixth, and Eleventh Circuits have rejected the plaintiffs’ argument and held that § 203(o) is not an exemption. Allen v. McWane, Inc., 593 F.3d 449, 458 (5th Cir.2010); Franklin, 619 F.3d at 612; Anderson, 488 F.3d at 957; cf. Adams v. United States, 471 F.3d 1321, 1325-26 (Fed.Cir.2006) (holding that the Portal-to-Portal Act’s exclusion of certain activities from FLSA coverage was not an exemption and did not need to be construed against the employer). On the other hand, the Ninth Circuit assumed, without analysis, that § 203(o) is an exemption and must be read narrowly. Alvarez, 339 F.3d at 905. We conclude that § 203(o) is not an exemption and, therefore, we do not read it narrowly or in the plaintiffs’ favor. Section 203(o) differs from the exemptions in 29 U.S.C. § 213 in three important respects. First, it is part of the definition of hours worked and is not specifically designated as an exemption. Second, § 203(o) removes only particular discrete activities from the definition of hours worked, whereas the § 213 exemptions remove entire classes of employees from FLSA coverage. Employees who are potentially affected by § 203(o) are still entitled to the bulk of the FLSA’s protections, whereas employees affected by an FLSA exemption are entitled to no FLSA protections at all. Third, § 203(o) does not exactly remove discrete activities from FLSA coverage; it gives employers and employees the option of removing those activities from FLSA coverage through collective bargaining. We hold that “clothes” under § 203(o) includes the PPE worn by the plaintiffs in this case. An expansive" }, { "docid": "20837136", "title": "", "text": "Inc., 434 F.Supp.2d 1314, 1318-19 (S.D.Fla.2005). Because Defendants failed to specifically plead this exemption in their answer, ECF No. 57, Defendants have waived the affirmative defense. While this Court may, in its discretion, allow a late amendment to raise an affirmative defense, it will not do so here. It would be prejudicial to Plaintiffs to permit an amendment after discovery has closed. To allow such eleventh-hour amendments without a compelling showing of cause would encourage great mischief by parties seeking to try cases by ambush contrary to the letter and spirit of the discovery rules. Second, even if Defendants were allowed to raise the small business exemption at this late date, Defendants have failed to establish their entitlement to its benefits. Because this exemption is an affirmative defense, Defendants have the burden of establishing the exemption at trial, Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974), and also on summary judgment. See Roca v. Alphatech Aviation Servs., Inc., 961 F.Supp.2d 1234, 1238-39 (S.D.Fla.2013); Klem v. Cnty. of Santa Clara, 208 F.3d 1085, 1095 (9th Cir.2000) (finding in summary judgment motion, “the burden is on the [employer] to demonstrate its entitlement to an exemption from the overtime provisions of the FLSA.”). In this case, the Defendants face a heightened burden of proof because of the remedial nature of the AWPA. It is not enough for Defendants to show they are exempt from the AWPA by a preponderance of the evidence; instead, it must demonstrate that it is plainly and unmistakably within the terms and spirit of the exemption. The Eleventh Circuit has emphasized that the “AWPA is a remedial statute and should be construed broadly to affect its humanitarian purpose.” See Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1505 (11th Cir.1993). As a corollary, exemptions are disfavored, not given generous application, and are construed narrowly against employers asserting them. Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960) (“We have held" }, { "docid": "22925600", "title": "", "text": "that the firefighters volunteered for on-call duty, the district court did not err in not addressing the issue. We hold that the district court did not err in finding traded on-call shifts compensable. e. City contends the district court erred by awarding Firefighter Binder $122,131.80 in backpay and liquidated damages. (See Renfro, 741 F.Supp. 887). Fed.R.Civ.P. 8(c) requires that affirmative defenses be pleaded or they are deemed waived. See Rachbach v. Cogswell, 547 F.2d 502, 505 (10th Cir.1976); Radio Corporation of America v. Radio Station KYFM, Inc., 424 F.2d 14, 17 (10th Cir.1970). “The general purpose of [Fed. R.Civ.P.] 8(c) is to provide particularized and specific notice of certain defenses.” State Distributors, Inc. v. Glenmore Distilleries, 738 F.2d 405 (10th Cir.1984). Therefore, the courts must be “especially careful to scrutinize the record to insure that plaintiff had sufficient notice and opportunity to rebut an allegedly tardily raised affirmative defense.” Id. City did not affirmatively plead the defense of Firefighter Binder’s exemption from FLSA until it filed a motion to alter or amend. (R., Yol. II, Tab 63). Thus, the district court properly found that City’s failure to affirmatively plead the defense prior to the grant of summary judgment in favor of firefighters was an effective waiver. Renfro, 741 F.Supp. at 888. The district court further stated that even if City had not effectively waived its right to plead the exemption defense, it had not met its burden of proof that Firefighter Binder was exempt from compensation under FLSA. Id. Section 13(a)(1) of FLSA provides an exemption for employees employed in a bona fide executive, administrative, or professional position. 29 U.S.C. § 213(a)(1). “The employer bears the burden of showing that an employee is exempt under the Act.” Firefighters Local 2141 v. City of Alexandria, Va., 720 F.Supp. 1230, 1232 (E.D.Va.1989). “The employer who asserts the exemption has the burden of establishing [the] requirements by clear and affirmative evidence.” Donovan v. United Video, Inc., 725 F.2d 577, 581 (10th Cir.1984). The employer must show the employee is paid on a salaried basis and the job duties are administrative, managerial, or professional" }, { "docid": "23468144", "title": "", "text": "the time of employment. E.R. 94. Magana identified eight persons from the Pacific Islands as examples of non-Filipinos hired without the requisite credentials and Tudela explained that one of these individuals qualified under the Australian system, while six others had worked at the Health Center longer than Magana. In September, 1994, Magana complained to Abraham about what she claimed to be disparate pay for Caucasian nurses with less education and experience than her. Shortly thereafter, a staff evaluation of Magana recommended that her contract not be renewed because she did not take criticism well and exhibited a poor attitude with patients. Ma-gana filed suit on October 5, 1995, and by letter dated the same day was advised that her contract with the Health Center would not be renewed. The district court denied relief and she has appealed. III. We now address Magana’s contention that the district court erred in ruling she was not entitled to overtime payments under § 213 of Fair Labor Standards Act. Appellees successfully asserted in the district court that Magana is exempt from entitlement to overtime payments under § 213 of the FLSA because she is employed in a professional capacity. They raised this issue for the first time in their motion for summary judgment filed on March 3, 1996, more than three months after filing their answer. Magana does not dispute the finding that nurses are “professionals” within the meaning of the FLSA. E.R. 167. She argues first that Defendants’ exemption argument is an affirmative defense that was not raised in their initial responsive pleading and was, therefore, waived. Magana further contends that, even if Defendants did not waive the exemption defense, she remains covered by the FLSA overtime provisions because the CNMI failed to establish that her PN II position meets the salary test used by courts to determine whether employees are exempt under § 213(a). We do not meet the merits of this contention because we agree that the Appellees initially waived their “professional capacity” FLSA defense by failing to plead it in a timely fashion, and because we conclude the district court" } ]

[ { "docid": "23320832", "title": "", "text": "15 is inconsistent with 28 U.S.C. § 2255 and with the rules governing § 2255 and is, therefore, inapplicable to § 2255 petitions. We also appointed counsel (“CJA Counsel”) to represent petitioner, and they have ably done so both in their briefs and at oral argument. Simultaneously with the filing of their opening brief, CJA counsel moved to expand the scope of the certificate of appealability to include consideration of the factual sufficiency of Thomas’s petition. This Court granted the request, including in the certification: (1) whether the original § 2255 petition included sufficient facts to avoid summary dismissal; and (2) whether, in light of the strict one-year time limit imposed by the AEDPA, district courts confronted with § 2255 petitions which the courts deem to include too few facts should allow additional filings only for the purpose of clarifying and recording factual detail. II. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2255 and 1331. We have jurisdiction under 28 U.S.C. § 1291. Typically, we would review a District Court’s order denying a motion to amend for abuse of discretion. See United States v. Duffus, 174 F.3d 333, 336 (3d Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 163, 145 L.Ed.2d 138 (1999). Here, however, the District Court did not exercise its discretion in denying the amendment but, rather, apparently believed that it did not have the authority to apply Rule 15 to a § 2255 petition. The question of whether Rule 15 applies to § 2255 petitions implicates the interpretation and application of legal precepts; therefore, our standard of review is plenary. See Cooney v. Fulcomer, 886 F.2d 41, 43 (3d Cir.1989). We also exercise plenary review over the legal conclusions which prompted the District Court to summarily dismiss Thomas’s petition. See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.2000). A. The Federal Rules of Civil Procedure apply to habeas corpus proceedings “to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” Fed.R.Civ.P. 81(a)(2). In addition," } ]

[ { "docid": "16865487", "title": "", "text": "filed as it was on November 2, 1998, Hicks did not offer his subsequent Apprendi motion until November 13, 2000. That amendment was therefore time-barred, and properly struck by the District Court, unless it was subsumed by the timely first motion pursuant to the “relation back” doctrine. While § 2255 and its governing rules say nothing about relation back, that doctrine is well-established in ordinary civil procedure, through Rule 15(c). The rule provides that, under certain circumstances, an amendment of a pleading relates back to the date of the original pleading, thereby avoiding statute of limitations problems that otherwise might have beset the amendment. See 6A Weight & Miller § 1496, at 64; Singletary v. Pennsylvania Dep’t of Corrections, 266 F.3d 186, 193 (3d Cir.2001) (“Rule 15(c) can ameliorate the running of the statute of limitations on a claim by making the amended claim relate back to the original, timely filed complaint.”). Our sister circuits agree that the basic principles of Rule 15(c) apply to amendments of § 2255 motions. See United States v. Espinoza-Saenz, 235 F.3d 501, 503-05 (10th Cir.2000); Davenport v. United States, 217 F.3d 1341, 1344-46 (11th Cir.2000); Pittman, 209 F.3d at 317; United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999). They have thus rejected the argument that the legal changes imposed by AEDPA preclude the relation back of amendments that otherwise would be time-barred. See Anthony v. Cambra, 236 F.3d 568, 576-78 (9th Cir.2000); Fama, 235 F.3d at 815-16; Thomas, 221 F.3d at 434-37. Section 2255’s “period of limitation” is a statute of limitations like any other, and like any other is subject to the principles of relation back. Cf. Dunlap v. United States, 250 F.3d 1001, 1004 & n. 1 (6th Cir.2001) (joining every other circuit to have considered the question in holding that “the one-year limitation period under § 2255 (or § 2244) is a statute of limitations, subject to the doctrine of equitable tolling, rather than a jurisdictional requirement”). At least in this respect, then, prisoners seeking collateral relief stand on an equal footing with ordinary civil claimants. This, however, does" }, { "docid": "16865488", "title": "", "text": "235 F.3d 501, 503-05 (10th Cir.2000); Davenport v. United States, 217 F.3d 1341, 1344-46 (11th Cir.2000); Pittman, 209 F.3d at 317; United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999). They have thus rejected the argument that the legal changes imposed by AEDPA preclude the relation back of amendments that otherwise would be time-barred. See Anthony v. Cambra, 236 F.3d 568, 576-78 (9th Cir.2000); Fama, 235 F.3d at 815-16; Thomas, 221 F.3d at 434-37. Section 2255’s “period of limitation” is a statute of limitations like any other, and like any other is subject to the principles of relation back. Cf. Dunlap v. United States, 250 F.3d 1001, 1004 & n. 1 (6th Cir.2001) (joining every other circuit to have considered the question in holding that “the one-year limitation period under § 2255 (or § 2244) is a statute of limitations, subject to the doctrine of equitable tolling, rather than a jurisdictional requirement”). At least in this respect, then, prisoners seeking collateral relief stand on an equal footing with ordinary civil claimants. This, however, does not mean that Hicks’ amendment may avail itself of the filing date of his original § 2255 motion. Under Rule 15(c)(2), an amendment is permitted to relate back only when “the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Accordingly, while amendments that expand upon or clarify facts previously alleged will typically relate back, those that significantly alter the nature of a proceeding by injecting new and unanticipated claims are treated far more cautiously. See 6A Wright & Miller § 1497, at 84; Bowles v. Reade, 198 F.3d 752, 762 (9th Cir.1999) (“If the amended complaint alleged a new claim for relief that arose out of different conduct or transactions it would not relate back to the original complaint.”); FDIC v. Conner, 20 F.3d 1376, 1385-86 (5th Cir.1994). In the context of § 2255 amendments, the courts have taken a relatively consistent approach to relation back. Although Rule 15(c) could be read to mean that" }, { "docid": "8097664", "title": "", "text": "proceedings. Every circuit that has addressed this issue agrees the Anti-Terrorism and Effective Death Penalty Act’s one-year statute of limitations, 28 U.S.C. §§ 2244(d)(1) and 2255, does not render Rule 15 inapplicable to federal habeas proceedings. See, e.g., Calderon v. Ashmus, 523 U.S. 740, 750, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998) (Breyer, J., concurring) (unless expressly governed by statute, Rule 15 applies in habeas proceedings); Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 814-16 (2d Cir.2000) (applying Rule 15 to both §§ 2254 and 2255 motions); Anthony v. Cambra, 236 F.3d 568, 576-77 (9th Cir.2000) (applying Rule 15 to § 2255 motion), cert. denied, 533 U.S. 941, 121 S.Ct. 2576, 150 L.Ed.2d 739 (2001); United States v. Espinoza-Saenz, 235 F.3d 501, 503-04 (10th Cir.2000) (§ 2255 motion); United States v. Thomas, 221 F.3d 430, 436 (3d Cir.2000) (Rule 15 applies to § 2255 as long as the petitioner is not seeking “to add an entirely new claim or new theory of relief’.); Davenport v. United States, 217 F.3d 1341, 1344-46 (11th Cir.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1232, 149 L.Ed.2d 141 (2001); United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir.2000); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999). Moreover, the Government is of the opinion that the proposed amendment— counsel’s alleged failure to convey a plea offer — relates back to Saenz’s permitted 1997 supplement concerning the claims that trial counsel was ineffective because, inter alia, he did not sufficiently communicate with Saenz and “Defendant never had any offer for a plea”. The district court, by adopting the magistrate judge’s report and recommendations, denied Saenz’s motion as time-barred. We review for abuse of discretion a district court’s decision concerning amendment of pleadings. E.g., Union Planters Nat'l Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir.1982). An erroneous legal conclusion constitutes an abuse of discretion. E.g., In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.1999), cert. denied, 528 U.S. 1117, 120 S.Ct. 936, 145 L.Ed.2d 814 (2000). Because the Government responded to Saenz’s supplemental motion in 1997, Saenz was required" }, { "docid": "22876027", "title": "", "text": "court promptly ruled on Anthony’s abeyance motion, and had Anthony returned to the district court with his newly exhausted claims within AEDPA’s time limitation, he would have been entitled to proceed with all of his claims in federal court. Here, however, the state’s highest court had already denied Anthony’s petition at the time the abeyance motion was granted. Therefore, as of July 30, 1997, AEDPA’s statute of limitations was no longer being tolled by state-court proceedings, and Anthony’s amended petition — filed in March of 1998 — -was untimely, unless it “related back” to the original petition. Anthony contends that under Federal Rule of Civil Procedure 15(c), his amended petition related back to his timely filed petition, thereby avoiding AEDPA’s strict period of limitation. The state insists that Rule 15(c) cannot apply to habeas corpus cases in light of AEDPA, because allowing relation back of otherwise time-barred «claims would offend Congress’s intent to expedite the presentation of claims in federal court. We reject the state’s argument. 28 U.S.C. § 2242 states that applications for habeas corpus “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” Similarly, Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts states that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to the petitions filed under these rules.” The state has cited to no authority that supports the proposition that AEDPA renders Rule 15 inapplicable to federal habeas corpus proceedings, and there is substantial authority to the contrary. See, e.g., Calderon v. Ashmus, 523 U.S. 740, 750, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998) (Breyer, J., concurring) (under Habeas Rule 11, and unless otherwise expressly governed by statute, habeas corpus amendments are governed by Rule 15); United States v. Thomas, 221 F.3d 430, 436 (3d Cir.2000) (holding that Rule 15(c) applies to post-AEDPA § 2255 petitions); Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir.2000) (applying Rule 15(c) to post-AEDPA habeas petition and holding that amended pleading related" }, { "docid": "7747017", "title": "", "text": "type, it does not relate back to his original claim). Yet in trying to strike a balance between the liberal Federal Rules of Civil Procedure and section 2255 statute of limitations enacted by Congress, the circuit courts have taken a slightly more exacting review when assessing whether amended claims relate back to their original. The general rule is that petitioner’s amended claims must relate back to the original claim more substantially and particularly than merely arising from the same trial or sentence proceedings. Petitioner finds himself presently residing in a procedural imbroglio. Because this court ordered a reply to petitioner’s motion and the United States filed one, petitioner cannot amend his brief without leave of court. Moreover, because petitioner’s timely filed motion was predicated on a “placeholder” theory, his future motion to amend will contain the essential crux of his legal arguments and claims. Therefore, petitioner is granted thirty (30) days to amend his complaint. The amendments are to be strictly limited in scope and substance to the twelve (12) averred in the original section 2255 motion. Federal Rule of Civil Procedure 15(c)(2) remains the cornerstone from which to adjudicate the fidelity of petitioner’s future amended claims to the 12 claims contained in the original motion. SO ORDERED. . \"Compare [United States] v. Thomas, 221 F.3d [430,] 436 (3rd Cir.2000) (Rule 15(c) allows habeas amendment to relate back as long as it does not add 'entirely new claim’), Davenport v. United States, 217 F.3d 1341, 1346 (11th Cir.2000) (holding that amendment did not relate back because ineffective assistance of counsel claims did not arise out of 'same set of facts’), cert. denied, [532 U.S. 907, 121 S.Ct. 1232, 149 L.Ed.2d 141] (2001), United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir.2000) (holding that claims did not relate back because they involved separate occurrences of 'both time and type'), and United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999) (holding that amendment did not relate back because ineffective assistance of counsel claims did not arise out of 'same set of facts’ and involved separate occurrences of 'both time and" }, { "docid": "11727690", "title": "", "text": "& n. 3 (8th Cir.), cert. denied, 540 U.S. 1018, 124 S.Ct. 592, 157 L.Ed.2d 433 (2003) (holding that § 2255 proceedings are civil in nature and governed by the Federal Rules of Civil Procedure); United States v. Craycraft, 167 F.3d 451, 457 n. 6 (8th Cir.1999) (same); see also Ryan v. Clarke, 387 F.3d 785, 789 (8th Cir.2004) (holding that the Federal Rules of Civil Procedure govern § 2254 cases because they are civil in nature), cert. denied, — U.S. —, 125 S.Ct. 2526, 161 L.Ed.2d 1119 (2005); McKay v. Purkett, 255 F.3d 660, 660-61 (8th Cir.) (per curiam) (same), cert. denied, 534 U.S. 1068, 122 S.Ct. 672, 151 L.Ed.2d 585 (2001). The Supreme Court recently applied Rule 15(c)(2) to an amended § 2254 motion for postconviction relief to determine if it contained claims that related back to the original filing. See Mayle v. Felix, — U.S. —, 125 S.Ct. 2562, 2566, 162 L.Ed.2d 582 (2005) (relying in part on 28 U.S.C. § 2242, which states habeas applications may be amended or supplemented as provided in the rules of procedure for civil cases). We have “characterized § 2255 motions as ‘the statutory analogue of habeas corpus for persons in federal custody.’ ” United States v. Martin, 408 F.3d 1089, 1093 (8th Cir.2005) (quoting Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir.1987)). The Supreme Court’s application of Rule 15 to a § 2254 habeas case in Mayle reaffirms our application of the Civil Rules to § 2255 cases as correct. Id. at 2568-69 (resolving the conflict among circuits on the relation back issue and citing both § 2254 and § 2255 cases, including Craycraft); see also Rules Governing § 2255 Proceedings Rule 12. Based on the Supreme Court’s precedent and that of this court, the district court properly applied Rule 15(c)(2). Hernandez next argues that the court improperly determined that the claim of ineffective assistance of counsel on cross-examination did not relate back to the claim of ineffective assistance of counsel for failure to object to the admission of evidence that was in his original motion. “We" }, { "docid": "16861897", "title": "", "text": "F.3d 802, 805 (7th Cir.1999) (because the Rules Governing Section 2255 Proceedings do not address amendments to motions for collateral review, Federal Rule of Civil Procedure 15(a) applies); Smith v. Gilmore, 111 F.3d 55, 56 (7th Cir.1997) (Federal Rule of Civil Procedure 11 applies to § 2254 eases because nothing in the Rules Governing Section 2254 Cases precludes its application). Indeed, every other circuit that has addressed whether Rule 15(c) should be applied to post-AEDPA habeas corpus proceedings has answered in the affirmative. Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir.2001); Fama v. Comm’r of Corr. Services, 235 F.3d 804, 814-16 (2d Cir.2000); Anthony v. Cambra, 236 F.3d 568, 576-78 (9th Cir.2000); United States v. Thomas, 221 F.3d 430, 435-36 (3d Cir.2000); Mederos v. United States, 218 F.3d 1252, 1253-54 (11th Cir.2000); United States v. Pittman, 209 F.3d 314, 316-17 (4th Cir.2000); United States v. Craycraft, 167 F.3d 451, 457 & n. 6 (8th Cir.1999). B. Procedural Default Newell’s petition is timely, but the state maintains that, even so, dismissal was proper because Newell procedurally defaulted his claims. It is true that Newell did not present his claims on direct appeal or in his first state post-conviction proceeding; he did, however, present them during his second post-conviction proceeding. According to Newell the parties litigated his second petition “through [New-ell’s] portion of an evidentiary hearing,” before realizing that he had failed to comply with Indiana Post-Conviction Rule 1(12), which requires leave from the Indiana Court of Appeals before filing a successive collateral attack. Newell accordingly moved for leave in December 1996, but the appeals court declined to authorize filing, stating that “having examined the Petitioner’s Petition for Successive Post-Conviction Relief [the court] finds that the Petition conclusively shows that the Petitioner is entitled to no relief.” See Indiana PosNConviction Rule l(12)(b) (“If the pleadings conclusively show that the petitioner is entitled to no relief, the court will decline to authorize the filing of the [successive] petition.”). The state argues that the Indiana appeals court’s statement that Newell’s successive petition “conclusively shows that the Petitioner is entitled to no relief1’ was" }, { "docid": "16861896", "title": "", "text": "only change reflecting the disposition of his state-court motion — and therefore falls within the scope of the rule. See BCS Fin. Corp. v. United States, 118 F.3d 522, 524 (7th Cir.1997) (amendments that merely correct technical deficiencies in earlier pleading meet the Rule 15(c) test and will relate back); 6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1497 (2d ed.1990) (same). Granted, we have not yet decided whether Rule 15(c) applies to post-AEDPA habeas corpus proceedings. We see no reason, however, why it should not apply. Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.” The § 2254 rules do not consider whether an amended petition can relate back to the filing date of the original; Rule 15(c) of the civil-procedure rules therefore governs. See Johnson v. United States, 196 F.3d 802, 805 (7th Cir.1999) (because the Rules Governing Section 2255 Proceedings do not address amendments to motions for collateral review, Federal Rule of Civil Procedure 15(a) applies); Smith v. Gilmore, 111 F.3d 55, 56 (7th Cir.1997) (Federal Rule of Civil Procedure 11 applies to § 2254 eases because nothing in the Rules Governing Section 2254 Cases precludes its application). Indeed, every other circuit that has addressed whether Rule 15(c) should be applied to post-AEDPA habeas corpus proceedings has answered in the affirmative. Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir.2001); Fama v. Comm’r of Corr. Services, 235 F.3d 804, 814-16 (2d Cir.2000); Anthony v. Cambra, 236 F.3d 568, 576-78 (9th Cir.2000); United States v. Thomas, 221 F.3d 430, 435-36 (3d Cir.2000); Mederos v. United States, 218 F.3d 1252, 1253-54 (11th Cir.2000); United States v. Pittman, 209 F.3d 314, 316-17 (4th Cir.2000); United States v. Craycraft, 167 F.3d 451, 457 & n. 6 (8th Cir.1999). B. Procedural Default Newell’s petition is timely, but the state maintains that, even so, dismissal was proper because Newell" }, { "docid": "8097663", "title": "", "text": "“may be amended or supplemented as provided in the rules of procedure applicable to civil actions”. 28 U.S.C. § 2242. Similarly, Rule 12 of the Rules Governing Section 2255 Proceedings for the United States District Courts authorizes district courts to apply the Federal Rules of Civil Procedure when appropriate and not inconsistent with applicable statutes or rules. Subject to certain conditions, Federal Rule of Civil Procedure 15 allows a party to amend a pleading. He may do so, inter alia, once before service of a responsive pleading; otherwise, he may amend “only by leave of court or by written consent of the adverse party; and leave shall be free ly given when justice so requires”. Fed. R.CivP. 15(a). “An amendment of a pleading relates back to the date of the original pleading when ... the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed. R.CivP. 15(c)(2). The Government concedes Rule 15 applies in § 2255 proceedings. Every circuit that has addressed this issue agrees the Anti-Terrorism and Effective Death Penalty Act’s one-year statute of limitations, 28 U.S.C. §§ 2244(d)(1) and 2255, does not render Rule 15 inapplicable to federal habeas proceedings. See, e.g., Calderon v. Ashmus, 523 U.S. 740, 750, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998) (Breyer, J., concurring) (unless expressly governed by statute, Rule 15 applies in habeas proceedings); Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 814-16 (2d Cir.2000) (applying Rule 15 to both §§ 2254 and 2255 motions); Anthony v. Cambra, 236 F.3d 568, 576-77 (9th Cir.2000) (applying Rule 15 to § 2255 motion), cert. denied, 533 U.S. 941, 121 S.Ct. 2576, 150 L.Ed.2d 739 (2001); United States v. Espinoza-Saenz, 235 F.3d 501, 503-04 (10th Cir.2000) (§ 2255 motion); United States v. Thomas, 221 F.3d 430, 436 (3d Cir.2000) (Rule 15 applies to § 2255 as long as the petitioner is not seeking “to add an entirely new claim or new theory of relief’.); Davenport v. United States, 217 F.3d 1341, 1344-46 (11th Cir.2000), cert." }, { "docid": "8097665", "title": "", "text": "denied, 532 U.S. 907, 121 S.Ct. 1232, 149 L.Ed.2d 141 (2001); United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir.2000); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999). Moreover, the Government is of the opinion that the proposed amendment— counsel’s alleged failure to convey a plea offer — relates back to Saenz’s permitted 1997 supplement concerning the claims that trial counsel was ineffective because, inter alia, he did not sufficiently communicate with Saenz and “Defendant never had any offer for a plea”. The district court, by adopting the magistrate judge’s report and recommendations, denied Saenz’s motion as time-barred. We review for abuse of discretion a district court’s decision concerning amendment of pleadings. E.g., Union Planters Nat'l Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir.1982). An erroneous legal conclusion constitutes an abuse of discretion. E.g., In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.1999), cert. denied, 528 U.S. 1117, 120 S.Ct. 936, 145 L.Ed.2d 814 (2000). Because the Government responded to Saenz’s supplemental motion in 1997, Saenz was required to seek leave from the district court to again amend his § 2255 motion. See Fed.R.Civ.P. 15(a). The district court ruled Saenz’s motion was time-barred, without explaining the basis, Rule 15 or otherwise, for doing so. In other words, it should have stated the underlying legal basis for its finding a time-bar, including determining, under Rule 15, whether the amendment related back to Saenz’s original pleading and “consider[ed] such factors as prejudice to the opposing party, undue delay, repeated failure to cure deficiencies with prior amendment, bad faith, dilatory motive and futility of amendment”. Union Planters, 687 F.2d at 121. III. Therefore, we VACATE that portion of the judgment denying leave to supplement concerning Saenz’s allegedly not receiving a plea offer from his trial counsel and REMAND to the district court for further proceedings consistent with this opinion, including deciding whether the supplement should be allowed under Federal Rule of Civil Procedure 15. VACATED in PART and REMANDED." }, { "docid": "16865490", "title": "", "text": "the relevant “occurrence” is the claimant’s trial and sentencing, this interpretation has been resisted, and with good reason. In most cases, a prisoner’s claims for collateral relief will arise out of the same criminal conviction; therefore, if the defendant’s trial and sentencing are construed to be the “occurrence,” virtually any purported amendment will relate back. Such a result would be difficult to square with Congress’ decision to expedite collateral attacks by placing stringent time restrictions on § 2255 motions. See Espinoza-Saenz, 235 F.3d at 505; Davenport, 217 F.3d at 1345-46; Pittman, 209 F.3d at 318. Therefore, like our sister circuits, we agree that Rule 15(c) does not apply where the prisoner’s proposed amendment makes claims or is based on occurrences “totally separate and distinct, ‘in both time and type’ from those raised in his original motion.” Espinoza-Saenz, 235 F.3d at 505 (quoting Craycraft, 167 F.3d at 457); see also Davenport, 217 F.3d at 1344 (suggesting that, in order to relate back, an untimely claim must have arisen from the “same set of facts” as the timely claim). In such circumstances, the Government would be deprived of “sufficient notice of the facts and claims giving rise to the proposed amendment,” thus subverting the central policy of the relation-back doctrine. Anthony, 236 F.3d at 576. In contrast, in cases in which such notice has been afforded, for example where the prisoner’s amendment seeks merely to elaborate upon his earlier claims, this effort should not generally be barred by the statute of limitations. See Dean v. United States, 278 F.3d 1218, 1222 (11th Cir.2002) (“When the nature of the amended claim supports specifically the original claim, the facts there alleged implicate the original claim, even if the original claim contained insufficient facts to support it. One purpose of an amended claim is to fill in facts missing from the original claim.”); Duffus, 174 F.3d at 337 (“Certainly the court could have permitted an amendment to clarify a claim initially made.”). Thus, while an amendment offered for the purpose of adding to or amplifying the facts already alleged in support of a particular claim" }, { "docid": "16865484", "title": "", "text": "how such amendments interact with the statute of limitations that Congress has imposed on motions for collateral relief. Under Rule 12 of the Rules Governing Section 2255 Proceedings, in the absence of a procedure specified either in the rules or in the statute, a district court “may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.” While both § 2255 and its governing rules are silent as to amendments, 28 U.S.C. § 2242 provides that an application for a writ of habeas corpus “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” We hold, in agreement with all of the other circuits that have considered the issue, that this principle applies to § 2255 proceedings as well, and, therefore, that such motions may be amended under the terms set by Rule 15(a). See United States v. Saenz, 282 F.3d 354, 356 (5th Cir.2002); United States v. Pittman, 209 F.3d 314, 317 (4th Cir.2000); United States v. Duffus, 174 F.3d 333, 336-37 (3d Cir.1999); cf. Fama v. Comm’r of Correctional Servs., 235 F.3d 804, 815-16 (2d Cir.2000) (holding that §§ 2254 and 2255 should be construed in pan materia with respect to “the timeliness of motions for leave to amend”). Accordingly, the “permissive approach” evinced by Rule 15(a) to the amendment of pleadings applies with equal force to § 2255 motions. United States v. Thomas, 221 F.3d 430, 435-36 (3d Cir.2000); cf. 6 Wright & Miller § 1471, at 505-06 (observing that the purpose of 15(a) “is to provide maximum opportunity for each claim to be decided on its merits rather than on procedural technicalities”). That said, however, it does not follow that the District Court erred in striking Hicks’ amendment. When Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132 § 105, 110 Stat. 1214 (Apr. 24, 1996), it imposed a one-year “period of limitation” on all motions made under § 2255. That period begins to run on “the date on" }, { "docid": "22388826", "title": "", "text": "on relation back of habeas petition amendments. Compare 379 F. 3d, at 614 (if original petition is timely filed, amendments referring to the same trial and conviction may relate back); Ellzey v. United States, 324 F. 3d 521, 525-527 (CA7 2003) (same), with United States v. Hicks, 283 F. 3d 380, 388-389 (CADC 2002) (relevant transaction must be defined more narrowly than the trial and conviction); United States v. Espinoza-Saenz, 235 F. 3d 501, 503-505 (CA10 2000) (same); Davenport v. United States, 217 F. 3d 1341, 1344-1346 (CA11 2000) (same); United States v. Pittman, 209 F. 3d 314, 317-318 (CA4 2000) (same); United States v. Duffus, 174 F. 3d 333, 337 (CA3 1999) (same); United States v. Craycraft, 167 F. 3d 451, 457 (CA8 1999) (same). We now reverse the Ninth Circuit’s judgment to the extent that it allowed relation back of Felix’s Fifth Amendment claim. II A In enacting AEDPA in 1996, Congress imposed for the first time a fixed time limit for collateral attacks in federal court on a judgment of conviction. Section 2244(d)(1) provides: “A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” See also §2255, ¶ 6 (providing one-year limitation period in which to file a motion to vacate a federal conviction). A discrete set of Rules governs federal habeas proceedings launched by state prisoners. See Rules Governing Section 2254 Cases in the United States District Courts. The last of those Rules, Habeas Corpus Rule 11, permits application of the Federal Rules of Civil Procedure in habeas cases “to the extent that [the civil rules] are not inconsistent with any statutory provisions or [the habeas] rules.” See also Fed. Rule Civ. Proc. 81(a)(2) (The civil rules “are applicable to proceedings for... habeas corpus.”). Rule 11, the Advisory Committee’s Notes caution, “permits application of the civil rules only when it would be appropriate to do so,” and would not be “inconsistent or inequitable in the overall framework of habeas corpus.” Advisory Committee’s Note on Habeas Corpus Rule" }, { "docid": "23285256", "title": "", "text": "the date of his first habeas petition under Fed.R.Civ.P. 15(c); and (3) that the statute of limitations should be equitably tolled. Woodward's first argument, that federal habeas petitions toll AEDPA's statute of limitations, was rejected by the Supreme Court in Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 2120, 2129, 150 L.Ed.2d 251 (2001) (overruling Petrick v. Martin, 236 F.3d 624 (10th Cir.2001)). We have previously addressed Woodward's Rule 15(c) argument by setting forth the following rule: [P]ursuant to Rule 15(c), an untimely amendment to a § 2255 motion which, by way of additional facts, clarifies or amplifies a claim or theory in the original motion may, in the District Court's discretion, relate back to the date of the original motion if and only if the original motion was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case. United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir.2000) (alterations omitted) (emphasis added). Although this petition was brought under § 2254 rather than § 2255, we see no reason to treat the issue differently. Cf. Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 816 (2d Cir.2000) (\"(C]ases applying Rule 15(c) to § 2255 petitions are persuasive in the § 2254 context.\"). Woodward's original petition raised only evidentiary claims, including the Confrontation Clause issue discussed above. The amended petition added claims of ineffective assistance of counsel and juror misconduct, which are \"new\" claims within the meaning of Espinoew-Saenz and therefore do not relate back to the date of the original habeas petition. Woodward also added an evidentiary argument that does relate back, however. In his original petition, Woodward argued that the trial court violated his due process rights by allowing recanted statements to be introduced. In the amended petition Woodward also argued that the court violated his rights by not allowing him to introduce evidence that the statement had been recanted. This amendment simply \"clarifies or amplifies a claim or theory in the original\" petition, and therefore relates back to the date of the original petition. We" }, { "docid": "4846380", "title": "", "text": "amend devoted most of .its wording to asserting an ineffective assistance of counsel claim and mentioned the Johnson case only in that context. In opposition, the government objected to the amendment on the ground that it was untimely. The government argued that the ineffective assistance claim did not relate back to the original petition and that Johnson could not affect Turner’s sentence because it was not retroactive. Turner did not file a reply to the government’s opposition. And, Turner did not say, after the government raised untimeliness, that his claim was governed by § 2255(f)(3). The district court’s denial of the second motion to amend simply states that it was “[d]enied as untimely.” The second motion to amend constituted yet another attempted addition to the ineffective assistance claims asserted in the original petition. If petitioner intended otherwise, he neither filed a motion to reconsider nor anything else to clarify to the district court that he was making a separate substantive Johnson claim governed by a different limitations period, specifically by § 2255(f)(3). The limitations periods in AEDPA express a clear Congressional intent to cabin the time for filing of post-conviction remedies. See, e.g., Duncan v. Walker, 533 U.S. 167, 178, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (AEDPA’s purpose is to further finality of convictions); United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir.2000) (noting the “intent of Congress that claims under 28 U.S.C. § 2255 be advanced within one year after a judgment of conviction becomes final” (quoting United States v. Dufjus, 174 F.3d 333, 337 (3d Cir.1999)) (internal quotation mark omitted)); United States v. Brooks, 230 F.3d 643, 649 (3d Cir.2000) (observing Congress’s intent in amending § 2255 was “to place limits on federal collateral review” (quoting Triestman v. United States, 124 F.3d 361, 376 (2d Cir.1997)) (internal quotation mark omitted)). The strictness on timing under § 2255 requires petitioners to be clear in the district court when they are relying on the provisions of 28 U.S.C. § 2255(f)(3) and making an independent claim. Cf. Ramos-Martínez v. United States, 638 F.3d 315, 325 (1st Cir.2011) (“A habeas" }, { "docid": "22876028", "title": "", "text": "corpus “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” Similarly, Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts states that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to the petitions filed under these rules.” The state has cited to no authority that supports the proposition that AEDPA renders Rule 15 inapplicable to federal habeas corpus proceedings, and there is substantial authority to the contrary. See, e.g., Calderon v. Ashmus, 523 U.S. 740, 750, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998) (Breyer, J., concurring) (under Habeas Rule 11, and unless otherwise expressly governed by statute, habeas corpus amendments are governed by Rule 15); United States v. Thomas, 221 F.3d 430, 436 (3d Cir.2000) (holding that Rule 15(c) applies to post-AEDPA § 2255 petitions); Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir.2000) (applying Rule 15(c) to post-AEDPA habeas petition and holding that amended pleading related back to original timely pleading); Grossi v. United States, 1999 WL 439237, at *10-*11 (N.D.Ill. June 28, 1999) (applying Rule 15(c) to post-AEDPA petition to allow amendment of timely § 2255 petition to include otherwise untimely claims). Indeed, we see no inconsistency between AEDPA’s statute of limitations and Rule 15(c)’s amendment regime where, as here, the state is on notice of the claims to be raised; as a leading treatise explains, “[t]he rationale of allowing an amendment to relate back is that once a party is notified of litigation involving a specific factual occurrence, the party has received all the notice and protection that the statute of limitation requires.” Under Rule 15(c)(2), an amendment of a pleading relates back to the date of the original pleading when “the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” We need not determine here the full scope of the rule’s application to amendments of habeas petitions, because in" }, { "docid": "23285257", "title": "", "text": "than § 2255, we see no reason to treat the issue differently. Cf. Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 816 (2d Cir.2000) (\"(C]ases applying Rule 15(c) to § 2255 petitions are persuasive in the § 2254 context.\"). Woodward's original petition raised only evidentiary claims, including the Confrontation Clause issue discussed above. The amended petition added claims of ineffective assistance of counsel and juror misconduct, which are \"new\" claims within the meaning of Espinoew-Saenz and therefore do not relate back to the date of the original habeas petition. Woodward also added an evidentiary argument that does relate back, however. In his original petition, Woodward argued that the trial court violated his due process rights by allowing recanted statements to be introduced. In the amended petition Woodward also argued that the court violated his rights by not allowing him to introduce evidence that the statement had been recanted. This amendment simply \"clarifies or amplifies a claim or theory in the original\" petition, and therefore relates back to the date of the original petition. We remand for the district court to address this issue. Woodward's equitable tolling argument also merits further consideration. We review a district court's decision on equitable tolling for abuse of discretion. See Arnold v. Air Midwest, 100 F.3d 857, 861 (10th Cir.1996). Woodward alleges that as of February 20, 1998, he had not received notice of the state court's final disposition in his case. If the statute of limitations were tolled until February 20, Woodward's amended petition would appear to be timely. Woodward argues that his lack of notice entitles him to equitable tolling. AEDPA's statute of limitations is subject to equitable tolling only \"when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 1195, 149 L.Ed.2d 110 (2001). In particular, a prisoner’s lack of knowledge that the state courts have reached a final resolution of his case can provide grounds for equitable tolling if the prisoner" }, { "docid": "22071016", "title": "", "text": "one year from the date on which the judgment of conviction becomes final. Thomas, 221 F.3d at 434 (internal quotation marks omitted). Nonetheless, in the context of a § 2255 petition brought by a prisoner in federal custody, the Third Circuit determined that the seeming inconsistency is one of appearance alone. In fact, “[t]he one-year period of limitations contained in the AEDPA is a statute of limitations like any other statute of limitations in a civil proceeding.” Id. at 436. And, Thomas therefore held that Rule 15(c) applies to § 2255 petitions. Other circuits have agreed. See United States v. Pittman, 209 F.3d 314, 318 (4th Cir.2000); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999). The reasoning of the Thomas court in the context of § 2255 petitions applies equally to § 2254 petitions. Sections 2254 and 2255 are generally seen as in pari materia. See Reilly v. Warden, 947 F.2d 43, 45 (2d Cir.1991) (‘“[Tjhere can be no doubt that the grounds for relief under § 2255 are equivalent to those encompassed by § 2254, the general federal ha-beas corpus statute.’ ”) (quoting Davis v. United States, 417 U.S. 333, 344, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). And when Congress amended the habeas framework in the AEDPA in 1996, and added the one-year statute of limitation, it did so both as to § 2254 and as to § 2255. See 28 U.S.C. 2244(d)(1) (“A 1 year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”); 28 U.S.C. § 2255 (“A 1 year period of limitation shall apply to a motion under this section.”). We conclude that, with regard at least to the timeliness of motions for leave to amend, the two statutes remain equivalent, and hence that the cases applying Rule 15(c) to § 2255 petitions are persuasive in the § 2254 context. Accordingly, we hold that Rule 15(c) applies to § 2254 petitions for habeas corpus. 2. Farm’s Amended Petition Because Fama moved to amend his petition" }, { "docid": "8072407", "title": "", "text": "initial petition put the government on immediate notice that he would challenge both judgments against him — charges originally levied in one indictment and based on identical wiretap audiotapes.” (emphasis added)); id. at 9 (\"Mr. Jones had the same counsel in each case, and filed not only a similar, but an identical claim of ineffective assistance against this attorney.”); id. at 11 (\"In fact, Petitioner filed an identical claim in his subsequent petition, and noted that he had preserved his claim in the prior petition.”); id. at 17-18 (\"Mr. Jones’s allegations all arise out of the same set of facts — his counsel was ineffective for failing to suppress wiretap evidence.” (emphasis added)). . We note that the relation-back portion of this rule is Federal Rule of Civil Procedure 15(c). . Pruitt v. United States, 274 F.3d 1315 (11th Cir.2001) (per curiam); Mederos v. United States, 218 F.3d 1252 (11th Cir.2000); Davenport v. United States, 217 F.3d 1341 (11th Cir.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1232, 149 L.Ed.2d 141 (2001). Petitioner’s Brief at 16-18. . We further note that, because this § 2255 motion was not filed until after Jones's other § 2255 motion had been answered by the government, decided by the district court, and an opinion rendered by our court, Federal Rule of Civil Procedure 15(a) prevents this petition from being considered an amendment to his first § 2255 motion filed in another case. Fed.R.Civ.P. 15(a). . Among the cases quoted by Jones's counsel is the seminal case for pro se, liberal-construction jurisprudence, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam), which concerns construing a prisoner’s pro se complaint to withstand a Federal Rule of Civil Procedure 12(b)(6) challenge and not timely filing within a statutory limitation period. Petitioner’s Brief at 19 & 21. Also inapposite is the quotation from Irwin, which, quoted in full, states: \"We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or" }, { "docid": "7747018", "title": "", "text": "2255 motion. Federal Rule of Civil Procedure 15(c)(2) remains the cornerstone from which to adjudicate the fidelity of petitioner’s future amended claims to the 12 claims contained in the original motion. SO ORDERED. . \"Compare [United States] v. Thomas, 221 F.3d [430,] 436 (3rd Cir.2000) (Rule 15(c) allows habeas amendment to relate back as long as it does not add 'entirely new claim’), Davenport v. United States, 217 F.3d 1341, 1346 (11th Cir.2000) (holding that amendment did not relate back because ineffective assistance of counsel claims did not arise out of 'same set of facts’), cert. denied, [532 U.S. 907, 121 S.Ct. 1232, 149 L.Ed.2d 141] (2001), United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir.2000) (holding that claims did not relate back because they involved separate occurrences of 'both time and type'), and United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999) (holding that amendment did not relate back because ineffective assistance of counsel claims did not arise out of 'same set of facts’ and involved separate occurrences of 'both time and type’), with Williams v. Vaughn, 3 F.Supp.2d 567, 570-71 (E.D.Pa.1998) (stating without further reason that amendment related back because it arose from same occurrence— namely the same trial and sentencing phases).” Berthoff v. United States, 140 F.Supp.2d at 60 n. 16." } ]

[ { "docid": "22611017", "title": "", "text": "of a statutory right; or (D) without observance of procedure required by law; and (4)in the case of a finding of material fact made in reaching a decision in a case before the [Department of Veterans Affairs] with respect to benefits under law administered by the [Department of Veterans Affairs], hold unlawful and set aside such finding if the finding is clearly erroneous. 38 U.S.C.A. § 4061(a) (West Supp.1990). If, upon consideration of the record, the Court cannot say the factual findings of the BVA are “clearly erroneous,” see 38 U.S.C.A. § 4061(a)(4); Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990); or that there is an error of law, the Court is obligated to affirm the BVA’s decision. Due regard must be given by the Court to the rule of prejudicial error. 38 U.S.C.A. § 4061(b). Whether a decision warrants an opinion of the Court or whether it should be summarily decided by order is, to a great extent, a function of its precedential value. The Court has surveyed the standards for summary disposition found in internal operating procedures and local rules for other federal appellate courts. We have chosen to adopt the following standard for summarily acting on BVA decisions appealed to the Court: If, after due consideration, the Court determines that the case on appeal is of relative simplicity and 1. does not establish a new rule of law; 2. does not alter, modify, criticize, or clarify an existing rule of law; 3. does not apply an established rule of law to a novel fact situation; 4. does not constitute the only recent, binding precedent on a particular point of law within the power of the Court to decide; 5. does not involve a legal issue of continuing public interest; and 6. the outcome is not reasonably debatable, the decision of the BVA may be affirmed or reversed on motion for summary disposition by either party, or on the Court’s own initiative, by an order and judgment without opinion. By" } ]

[ { "docid": "23499948", "title": "", "text": "basis for the veteran’s current PTSD symptoms; and, if not, whether the veteran served in combat; whether the asserted landing stressor is corroborated by any further ESG report or other evidence; and whether, according to the medical evidence, the landing stressor if found to have occurred was a contributory basis for the veteran’s current PTSD symptoms. See Williams, supra; Sheets v. Derwinski, 2 Vet.App. 512, 516 (1992); O’Hare v. Derwinski 1 Vet.App. 365, 367 (1991); see also Fletcher v. Derwinski 1 Vet.App. 394, 397 (1991) (“[a] remand is meant to entail a critical examination of the justification of the decision” and is not “merely for the purposes of rewriting the opinion so it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1)”). Also, because the Court holds that the undisputed diagnosis of PTSD by the three mental-health professionals established on the facts of this case, as a matter of law, a current PTSD disability, which necessarily includes the sufficiency of the alleged stressors (although not necessarily their occurrence), the changes brought about in the PTSD diagnostic criteria by VA’s adoption, in 38 C.F.R. §§ 4.125 and 4.130 (Nov 96 amnds), of the DSM-IV nomenclature, effective on November 7, 1996 (61 Fed.Reg. at 52,695), will not be for application on remand as to that aspect of the ease. The DSM-IV criteria will be for application on all other questions to which they are relevant, and the new diagnostic code criteria in 38 C.F.R. § 4.130 will be for application to establish the appropriate disability rating if the appellant’s PTSD is found to be service connected— in each instance to the extent that those criteria are more favorable to the veteran. See Hayes and Karnas, both supra. III. Conclusion Upon consideration of the record and the submissions of the parties, the Court vacates the May 2, 1994, BVA decision and reverses it in part, and remands the matter for expeditious further development and readjudication, on the basis of all applicable law and regulation, and issuance of a readjudicated decision supported by an adequate statement of reasons or" }, { "docid": "6785159", "title": "", "text": "regulation under such circumstances would not be prejudicial to the claimant. See 38 U.S.C. § 7261(b) (Court shall take due account of rule of prejudicial error); Edenfield, 8 Vet.App. at 390-91; cf. Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (remand due to BVA’s deficient reasons or bases statement under 38 U.S.C. § 7104(d)(1) would impose unnecessary burden on BVA where “overwhelming evidence” supports BVA decision). If the Board finds on remand that the claim is reopened and is well grounded, it should under the 38 U.S.C. § 5107(a) duty to assist provide for a current medical examination, with the examiner directed to address the nexus issue after a review of all medical records and the claims file. See Smith (George) v. Brown, 8 Vet.App. 546, 553 (1996) (en banc) (“[w]hile the Board is not required to accept the medical authority supporting a claim, it must provide its reasons for rejecting such evidence and, more importantly, must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision”). III. Conclusion Upon consideration of the foregoing analysis, the record on appeal, and the parties’ pleadings, and in light of Hodge, Epps, and Barnett, all supra, the Court vacates the May 6, 1997, BVA decision and remands the matter for expeditious further development, as appropriate, and issuance of a readjudicat-ed decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 5107, 5108, 7104(a), (b)(d)(1); 38 C.F.R. § 3.156(a); Hodge, 155 F.3d at 1364; Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991)— all consistent with this opinion and in accordance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” for claims remanded by BVA or the Court). See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995). “On remand, the appellant will be free to submit additional evidence and argument” on the remanded claim. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). The Court notes that a remand by this Court and" }, { "docid": "11961539", "title": "", "text": "313 (1991)). Therefore, the Board should have given the veteran extra-schedular consideration or explained why it was not applicable. The BVA did not provide an adequate statement of reasons or bases in support of its finding that the veteran’s disabilities did not prevent him from working. See Hyder, 1 Vet.App. at 224; Brown, 2 Vet.App. at 445; Fluharty v. Derwinski, 2 Vet.App. 409, 412 (1992). The Board mentioned the results of the November 1989 psychiatric evaluation and found that the veteran’s con dition at that time was not severe enough to preclude him from gaining employment. His education and background were not discussed except for a conclusory statement that “[d]espite his limited educational background ... [his] disabilities cannot be considered severe enough to permanently preclude substantially gainful employment for someone of the veteran’s relatively young age.” Grantham, BVA 91-26911, at 6. For all of the above reasons, the Court will vacate the BVA decision and remand the matter for further development and readjudi-cation in accordance with this opinion. III. Conclusion Upon consideration of the record and the submissions of the parties, the Court holds that the appellant’s appeal as to his left-eye claim is dismissed for lack of a jurisdiction-conferring NOD. See West, supra. The Court grants the Secretary’s motion for remand, summarily vacates the September 10, 1991, BVA decision as to the pension claim and remands the matter for expeditious further development and readjudication, on the basis of all applicable law and regulation, and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1310, 5107(a), (b), 7104(d)(1), 7261; Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) — all consistent with this opinion and in accordance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103 — 446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” for claims “remanded” by BVA or Court). See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995). “On remand, the appellant will be free to submit additional evidence and argument” on" }, { "docid": "10171486", "title": "", "text": "records is not sufficient. See Cartright, 2 Vet.App. at 25. Moreover, an “[ajppellant’s sworn statement, ... unless sufficiently rebutted, may serve to place the evidence in equipoise” and thereby entitle appellant to the claimed benefit. Id. at 25-26; see Gilbert, 1 Vet.App. at 52. Finally, the Board failed to provide a statement of reasons or bases for its finding that the “evidence of record is not evenly balanced or otherwise of such a nature as to raise a reasonable doubt warranting a grant of the benefit requested on appeal.” Miller, BVA 91-09427, at 5. Such a cursory and conclusory statement concerning the benefit of the doubt doctrine of 38 U.S.C. § 5107(b), standing alone, is inadequate and fails to satisfy the “reasons or bases” requirements of 38 U.S.C. § 7104(d). See O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). A remand is necessary to permit the Board the opportunity to correct the errors noted above, to consider the jurisprudence of this Court, and to perform “a critical examination of the justification for the decision. The Court expects that the BVA will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). IV. CONCLUSION Upon consideration of the record, appellant’s briefs and the Secretary’s motion, the Court holds that the BVA has failed to articulate, pursuant to 38 U.S.C. § 7104(d), the reasons or bases for its decision on appeal. Summary disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23 (1990). Accordingly, the Secretary’s motion for summary affirmance is denied. The March 25, 1991, BVA decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision." }, { "docid": "15814780", "title": "", "text": "§ 7104(a), (d)(1); Allday and Caluza, both supra; Gilbert, 1 Vet.App. at 56-57, we are not left with a “firm and definite conviction” that the veteran is entitled to a 70% rating. U.S. Gypsum Co., supra. However, for the reasons set forth above, we are convinced that the Board failed to consider adequately the criteria in DC 9411 for a 70% rating and will remand for a full readjudication — under both the old and new DC 9411 criteria, see Kamas, supra, and the issuance of a new decision supported by an adequate statement of reasons or bases, and note again that there is much evidence that the Board must address explicitly on remand that it failed to address in the decision on appeal. See 38 U.S.C. § 7104(a), (d)(1); Allday, Caluza, and Gilbert, all supra; Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical examination of the justification for the decision. The Court expects that the BVA will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.”). III. Conclusion Because the appellant explicitly abandoned his Meniere’s-disease claim, the Court dismisses the appeal as to the July 12, 1999, BVA decision’s denial of that claim. Upon consideration of the foregoing analysis, the ROA, and the submissions of the parties, the Court reverses the July 12, 1999, BVA decision as to its determination that the veteran’s TDIU claim not be submitted to the C & P Director, and vacates the decision on all remaining matters and remands those matters for expeditious further development and issuance of a readju-dicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1110, 5107, 7104(a), (d)(1); 38 C.F.R. § 4.132, DC 9411 (1996); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2000); Francisco and Fletcher, both supra — all consistent with this opinion. The Court is mindful that the appellant’s increased-rating claim has been the subject of VA litigation for almost a decade, and expects the Secretary, on remand, to heed" }, { "docid": "9631263", "title": "", "text": "an opinion only as to the likelihood of the veteran’s subsequently developing Huntington’s chorea, not an opinion that the disability had its onset in, was aggravated by, or would otherwise be related to the appellant’s condition in service”); Johnson (Ethel) v. Brown, 8 Vet.App. 423, 427-28 (1995) (holding that hearing officer had no obligation under 38 C.F.R. § 3.103(c)(2) to advise appellant as to physician’s statement because “that statement would not have helped prove the claim” — that is, that statement would not have “provide[d] a nexus with the veteran’s service”). III. Conclusion Upon consideration of the record and the submissions of the parties and in accordance with the foregoing discussion, the Court affirms the July 1,1994, BVA decision as to the § 1310 DIC claim, the denial of burial benefits under 38 U.S.C. § 2307, and an effective date earlier than May 1, 1988, for § 1151 DIC, and vacates the decision and remands the matters of accrued benefits based on TDIU and burial benefits under 38 U.S.C. §§ 2302, 2303(a), and 2304 for expeditious further development and readjudication, on the basis of all applicable law, regulation, and procedure, and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 2302, 2303(a), 2304, 5107(a), (b), 5108, 7104(a), (d)(1), 7105(c), 7261; Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) — all consistent with this opinion and in accordance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” for claims remanded by BVA or Court). See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995). “On remand, the appellant will be free to submit additional evidence and argument” on the remanded claims. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later" }, { "docid": "18497445", "title": "", "text": "appropriate for summary disposition because the case is one “of relative simplicity” and the outcome is controlled by our precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Therefore, the April 6, 1990, BVA decision is vacated, and the matter is remanded to the BVA for readju-dication and issuance of a new decision with an adequate statement of reasons or bases for each of the Board’s findings and conclusions. See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (Remand is not “merely for the purposes of rewriting the opinion so that it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1)_ A remand is meant to entail a critical examination of the justification for the decision.”). A final decision by the Board following the remand herein ordered will constitute a new decision which may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which the new BVA decision is mailed to the appellant. The Secretary’s motion for summary affirmance is denied, and his motion that his motion be accepted as a brief is granted. VACATED AND REMANDED." }, { "docid": "22025673", "title": "", "text": "section 5103(a) duty to notify the appellant regarding the procurement and submission of any such additional evidence. See Graves v. Brown, 8 Vet.App. 522, 524-25 (1996) (applying section 5103(a) and Robi-nette to claim to reopen). In readjudicating the case on remand, the Board must provide a full statement of its reasons or bases under 38 U.S.C. § 7104(d)(1), see Gilbert, 1 Vet.App. at 56-57, and, in light of the “significant” evidence in support of the claim, must explain its consideration of the benefit-of-the doubt rule under 38 U.S.C. § 5107(b), Williams (Willie) v. Brown, 4 Vet.App. 270, 273-74 (1993). Finally, the Board should clarify whether the veteran still wishes a hearing before the Board in view of his request for a hearing in his December 1991 VA Form 1-9. See R. at 529. III. Conclusion Upon consideration of the record and the submissions of the parties, the Court vacates the September 12, 1994, BVA decision and remands the matter of service connection for rheumatic heart disease for expeditious further development, proceedings, and readjudi-cation, on the basis of all applicable law, regulation, and procedure, and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 5103(a), 5107(a), (b), 7104(a), (d)(1), 7261; 38 C.F.R. § 20.1304(c); the September 1994 BVA Memorandum; Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) — all consistent with this opinion and in accordance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” for claims remanded by BVA or Court). See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995). “On remand, the appellant will be free to submit additional evidence and argument” on the remanded claims. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). A final decision by the Board following the remand herein ordered will constitute a new decision which, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120" }, { "docid": "23055385", "title": "", "text": "VA psychiatric examination report, the examiner had written: “patient’s prognosis for return to work is poor. He is in my opinion disabled due to mental illness and will remain so for an extended period of time, probably permanently.” R. at 17. Therefore, if it is determined that the veteran’s psychiatric disorder is related to his service-connected maxillary disability, the un-employability claim is well grounded and the BVA must then determine whether the veteran is entitled to a total service-connected disability rating under 38 C.F.R. § 4.16(b). III. CONCLUSION For the reasons set forth above, the matter must be remanded to the BVA for proceedings consistent with this opinion and further evidentiary development pursuant to controlling statutory and regulatory provisions. On remand, the veteran should be examined for the purposes of determining the current level of his service-connected maxillary disability. He should also be allowed to supplement the record with additional evidence as to each of his claims. Once the record has been adequately developed, the Board, after considering all the evidence of record, should adjudicate or readjudicate each of the veteran’s claims. See Carl Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (Remand is not “merely for the purposes of rewriting the opinion so that it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1).... A remand is meant to entail a critical examination of the justification for the decision.”). A final decision by the Board following the remand herein ordered will constitute a new decision which may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which the new decision is mailed to the appellant. VACATED AND REMANDED." }, { "docid": "22030904", "title": "", "text": "wound only of the skin. Further, the Court holds that the BVA, in denying the veteran’s current increased rating-claim, failed to provide an adequate statement of reasons or bases as to its rejection of the material evidence favorable to the veteran. See Simon, Masors, and Gilbert, all supra. Accordingly, the Court will vacate the decision and reverse as to the clearly erroneous factual finding and will remand the current increased-rating claim to the Board for it to provide an adequate statement of reasons or bases in evaluating the evidence favorable to the veteran, including a full discussion as to both 1993 examinations, the requirements for a through-and-through muscle wound, and 38 C.F.R. §§ 4.56(b) and 4.72 as interpreted by Myler and as they apply to this case. Additionally, on remand the Board should comport with the Court’s holding in Colvin by relying only on independent medical evidence in support of its conclusions. III. Conclusion On consideration of the foregoing, the record on appeal, and the briefs of the parties, the Court vacates the April 29, 1994, BVA decision as to both claims, reverses the Board finding identified above as to the nature of the through-and-through wound based on the current record, and remands for expeditious readjudication of both claims, on the basis of all applicable law and regulation, see Fletcher v. Derwinski, 1 Vet.App. 894, 397 (1991), and issuance of a new decision supported by an adequate statement of reasons or bases — all consistent with this opinion and in compliance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103-466, § 302, 108 Stat. 4645, 4658 (1994) (requiring Secretary to provide for “expeditious treatment” for claims remanded by BVA or the Court). See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995). On remand, the claimant will be free to submit additional evidence (to the extent appropriate) and argument on the remanded claims. See Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). A final decision by the Board following the remand herein ordered will constitute a new decision which, if adverse, may be appealed to this Court only" }, { "docid": "21495244", "title": "", "text": "or repudiate the evidence from [Dr. McSwain]-” Obert v. Brown, 5 Vet.App. 30, 33 (1993) (“The presentation of a well-grounded claim triggers a necessity to seek medical evidence either to verify or not verify the claim.”); see also 38 C.F.R. § 19.9; King and Proscelle, both supra. The further development should include “the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one”, Green, supra, and the examiner should be asked for a specific opinion on whether the appellant’s congenital heart condition increased in severity during service. If such an increase is found, the Board may wish to seek to clarify whether such worsening advanced beyond its natural progress, a factor Dr. McSwain did not explicitly address but seemed to imply. See R. at 196; 38 C.F.R. §§ 3.303(c), 3.306(a). III. Conclusion Upon consideration of the record and the submissions of the parties, the Court vacates the July 12, 1993, BVA decision and remands the matter for expeditious further development and readjudication, on the basis of all applicable law and regulation, see 38 U.S.C. §§ 5107(a), 5108, 7104(a), (b), (d)(1); 38 C.F.R. §§ 3.303(c), 3.306(a), 19.9; Fletcher v. Derwinski 1 Vet.App. 394, 397 (1991), and issuance of a readjudicated decision supported by an adequate statement of reasons or bases — all consistent with this opinion and in accordance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” for claims “remanded” by BVA or Court). See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995). “On remand, the [claimant] will be free to submit additional evidence and argument” on the remanded claim. Quarles v. Derwinski 3 Vet.App. 129, 141 (1992). A final decision by the Board following the remand herein ordered will constitute a new decision which, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal" }, { "docid": "18497444", "title": "", "text": "a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the. claimed disability is a fully informed one.” Green v. Derwinski, 1 Vet.App. 121, 124 (1991); see Wilson v. Derwinski, 2 Vet.App. 16, 21 (1991); Parker v. Derwinski, 1 Vet.App. 522, 526 (1991); Moore v. Derwinski, 1 Vet.App. 401, 405 (1991); EF v. Derwinski, 1 Vet.App. 324, 326 (1991). On remand, the examiner should review the veteran’s claims folder and express an opinion, supported by reasons, as to whether the veteran’s current disability is in any way related to his service. III. Upon consideration of the record, the appellant’s informal brief, and the motion of the Secretary of Veterans Affairs (Secretary) for summary affirmance, it is held that the BVA failed to provide a statement of reasons or bases adequate to enable the claimant and this Court to understand the Board’s evaluation of the evidence and its response to various arguments raised by the claimant. It is further held that this case is appropriate for summary disposition because the case is one “of relative simplicity” and the outcome is controlled by our precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Therefore, the April 6, 1990, BVA decision is vacated, and the matter is remanded to the BVA for readju-dication and issuance of a new decision with an adequate statement of reasons or bases for each of the Board’s findings and conclusions. See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (Remand is not “merely for the purposes of rewriting the opinion so that it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1)_ A remand is meant to entail a critical examination of the justification for the decision.”). A final decision by the Board following the remand herein ordered will constitute a new decision which may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which the new BVA" }, { "docid": "10140810", "title": "", "text": "to entail a critical examination of the justification for the decision” and is not “merely for the purpose of rewriting the opinion so that it will superficially comply with” the Court’s order. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991); see 38 U.S.C.A. §§ 5107(a), 7104(a), (d)(1); see Hyder v. Derwinski, 1 Vet.App. 221, 224 (1991) (BVA must provide statement of reasons or bases regarding evaluation of pension claim). The Board also breached its duty to assist by not seeking to obtain records of SSA disability determinations. The SSA determinations are relevant to a determination of whether appellant is able to secure and follow a substantially gainful occupation under 38 C.F.R. § 4.17, and VA’s duty to assist includes seeking to obtain these records. Murincsak v. Derwinski, 2 Vet.App. 363, 370, 372 (1992); Collier v. Derwinski, 1 Vet.App. 413, 417 (1991); see also Brown v. Derwinski, 2 Vet.App. 444, 448 (1992) (Board must consider SSA unemploy-ability determination and must give statement of reasons or bases for the weight given to this evidence); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992) (SSA records may contain evidence not previously before the Board); Washington v. Derwinski, 1 Vet.App. 459, 465-66 (1991) (SSA determination is evidence which the Board must consider). On remand, the Board must seek to obtain appellant’s relevant SSA records. III. CONCLUSION The Court notes that appellant in this appeal has presented the issue of an earlier effective date for the award of service connection. The Court further notes, after a careful review of the record, that the date of award, cited by the RO and the BVA as November 30, 1988, does not appear to be in keeping with the facts set forth in the record. Therefore, on remand, the BVA may wish to examine, inter alia, the effective date of award as stated in its decision. Accordingly, upon consideration of the record, appellee’s motion for partial summary affirmance and for partial remand, and appellant’s brief, the Court AFFIRMS in part and VACATES in part the Septem ber 26, 1991, decision of the BVA, and REMANDS the matter for readjudication" }, { "docid": "22097685", "title": "", "text": "to the SSA unemployability rating that were not previously before the BVA. Under 38 U.S.C. § 5106 (formerly § 3006), the SSA, as is any other federal department or agency, is directed to “provide such information to the Secretary as the Secretary may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto.” Moreover, 38 U.S.C. § 5107(a) specifically states that VA’s duty to assist includes requesting information from other federal departments or agencies as described in section 5106. See Murphy, 1 Vet.App. at 82; Littke, 1 Vet.App. at 91. The record on appeal indicates that the only SSA record before the BVA in April 1990 was a copy of the 1983 decision rating the veteran unemployable for SSDI purposes. On remand, therefore, the BVA should seek to obtain any SSA records relating to the veteran’s unemployability subsequent to the 1983 SSA decision making him eligible for SSDI. 2. Upon remand the Board will be required to assist the veteran in obtaining both private and governmental records pertinent to his pension claim. As a consequence of the new evidence, the Board will then be required to readjudicate the veteran’s unemployability and provide reasons and bases for its conclusions. See 38 U.S.C. § 7104(d)(1); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical examination of the justification of the decision” and is not “merely for the purposes of rewriting the opinion so it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1)”.); Sammarco v. Derwinski, 1 Vet.App. 111, 112-14 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). The statement of reasons or bases must be sufficient to “enable a claimant to understand, not only the Board’s decision but also the precise basis for that decision” as well as to facilitate review by this Court. Gilbert, 1 Vet.App. at 56. In denying claims of unemployability, the BVA must provide reasons or bases for a conclusion that the veteran is not precluded from pursuing substantially gainful employment. See Collier, 1 Vet.App. at" }, { "docid": "20874116", "title": "", "text": "and the claimant asserts that his or her condition has worsened. On the facts of this case, the Board did not err in concluding that an additional examination was not necessary for purposes of evaluating the veteran’s disability. However, in view of the additional time that has passed during the pen-dency of the veteran’s appeals before the BVA and this Court, the Board on remand should reconsider the need to remand to the RO now for a new examination to evaluate the current level of the veteran’s service-connected disabilities. See Proscelle, supra. III. CONCLUSION Upon consideration of the record, the appellant’s brief, and the Secretary’s motion for summary affirmance, the Court denies the Secretary’s motion, summarily vacates the January 28, 1991, BVA decision, and remands the matter to the Board for prompt further proceedings consistent with this decision, including prompt readju-dication on the basis of all evidence of record and applicable law and regulation and issuance of a decision fully supported by reasons or bases. See 38 U.S.C.A. § 7104(a), (d)(1) (West 1991); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). On remand, the appellant will be free to sub mit additional evidence and argument. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). A final decision by the Board following the remand herein ordered will constitute a new decision which, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of that new decision is mailed to the appellant. VACATED AND REMANDED." }, { "docid": "10148598", "title": "", "text": "lead to bronchial or lung cancer, because the VA recognizes the extreme latency period associated with asbestos-related diseases, and because the VA is readjudicat-ing the claim for service connection for cause of death on the basis of radiation exposure, we find that the BVA adjudicated this claim without adequate development. Therefore, this matter will be remanded with instructions that the Secretary more fully develop the claim, in light of the guidelines set forth in DVB CIRCULAR 21-88-8. III. CONCLUSION For the reasons stated above, the Court AFFIRMS the decision of the BVA which denied service connection for polycythemia rubra vera due to radiation exposure. For the reasons also stated above, the Court VACATES the decision of the BVA which denied service connection for polycythemia rubra vera due to asbestos exposure, denied service connection for COPD due to asbestos exposure, and denied service connection for cause of death from exposure to asbestos. Further, the Court REMANDS these matters for readjudication consistent with this opinion. The Secretary is reminded that remand is not “merely for the purposes of rewriting the opinion so that it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)). A remand is meant to entail a critical examination of the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). FARLEY, Associate Judge, concurring in part and dissenting in part: The reasons or bases offered by the Board of Veterans’ Appeals for rejecting the claims for service connection for poly-cythemia rubra vera and chronic obstructive pulmonary disease, particularly in light of DVB CIRCULAR 21-88-8 which was referenced by the majority in its opinion, are more than adequate to satisfy the requirements of 38 U.S.C. § 7104(d)(1) and our jurisprudence. See Gilbert, 1 Vet.App. 49. Unlike the majority, I would affirm the BVA’s decisions on these two issues; I concur in the remainder of the analyses and holdings of the majority." }, { "docid": "11950903", "title": "", "text": "failed to notify the claimant or her representative of the request for a BMAO or to provide the opportunity to present evidence in rebuttal. The Court grants the Secretary’s motion (which is incorporated in this opinion by reference) to the extent provided in this opinion and vacates the January 28, 1993, BVA decision and remands the matter for expeditious further development and readjudication, on the basis of all applicable law and regulation, and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1310, 5107(a), 7104(d)(1), 7261; 38 C.F.R. § 4.71a; Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991)—all consistent with this opinion and in accordance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” for claims “remanded” by BVA or the Court). See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995). “On remand, the [claimant] will be free to submit additional evidence and argument” on the remanded claim. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). A final decision by the Board following the remand herein ordered will constitute a new decision which, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the new Board final decision is mailed to the appellant. VACATED AND REMANDED." }, { "docid": "18497443", "title": "", "text": "admitting to a possible psychiatric problem. A veteran’s sworn testimony is evidence that the BYA must consider, and the Board’s reasons or bases must include an analysis of the credibility and probative value of that evidence. See Ohland v. Derwinski, 1 Vet.App. 147, 149-50 (1991). Furthermore, the BVA’s statement of reasons or bases must include “the Board’s response to the various arguments advanced by the claimant.” Gilbert, 1 Vet.App. at 56; Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991). Here, the veteran presented a plausible explanation for the absence of any notation of psychiatric problems at separation. Therefore, the BVA had a duty to deal with that explanation, particularly in light of the medical evidence that the veteran had had a long-standing gastrointestinal condition in service, which was diagnosed in service by an Air Force examining physician as a psychophysiological reaction. In view of the conflicting evidence concerning the cause of the veteran’s current depression and the existence of the disorder during and shortly after service, the-statutory duty to assist here “includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the. claimed disability is a fully informed one.” Green v. Derwinski, 1 Vet.App. 121, 124 (1991); see Wilson v. Derwinski, 2 Vet.App. 16, 21 (1991); Parker v. Derwinski, 1 Vet.App. 522, 526 (1991); Moore v. Derwinski, 1 Vet.App. 401, 405 (1991); EF v. Derwinski, 1 Vet.App. 324, 326 (1991). On remand, the examiner should review the veteran’s claims folder and express an opinion, supported by reasons, as to whether the veteran’s current disability is in any way related to his service. III. Upon consideration of the record, the appellant’s informal brief, and the motion of the Secretary of Veterans Affairs (Secretary) for summary affirmance, it is held that the BVA failed to provide a statement of reasons or bases adequate to enable the claimant and this Court to understand the Board’s evaluation of the evidence and its response to various arguments raised by the claimant. It is further held that this case is" }, { "docid": "20874115", "title": "", "text": "was necessary because a year had transpired since the last one. R. at 35. Pursuant to VA’s statutory duty to assist claimants who submit well-grounded claims (38 U.S.C.A. § 5107(a) (West 1991)), the Board is required to order an examination when the medical evidence of record provides an insufficient basis for a current evaluation. See Wilson v. Derwinski, 2 Vet.App. 16, 21 (1991); EF v. Derwinski, 1 Vet.App. 324, 326 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991); 38 C.F.R. § 4.2 (1992). Furthermore, the RO is required to schedule a reexamination whenever “evidence indicates that there has been a material change in a disability or that the current rating may be incorrect.” 38 C.F.R. § 3.327(a) (1992); see Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (exam required when veteran submitted a well-grounded claim that service-connected disability had increased). It does not necessarily follow that the Board must remand for an examination whenever, during the course of the claims adjudication process, more than one year transpires from the date of the last examination and the claimant asserts that his or her condition has worsened. On the facts of this case, the Board did not err in concluding that an additional examination was not necessary for purposes of evaluating the veteran’s disability. However, in view of the additional time that has passed during the pen-dency of the veteran’s appeals before the BVA and this Court, the Board on remand should reconsider the need to remand to the RO now for a new examination to evaluate the current level of the veteran’s service-connected disabilities. See Proscelle, supra. III. CONCLUSION Upon consideration of the record, the appellant’s brief, and the Secretary’s motion for summary affirmance, the Court denies the Secretary’s motion, summarily vacates the January 28, 1991, BVA decision, and remands the matter to the Board for prompt further proceedings consistent with this decision, including prompt readju-dication on the basis of all evidence of record and applicable law and regulation and issuance of a decision fully supported by reasons or bases. See 38 U.S.C.A. § 7104(a), (d)(1) (West 1991); Fletcher v." }, { "docid": "22097686", "title": "", "text": "pertinent to his pension claim. As a consequence of the new evidence, the Board will then be required to readjudicate the veteran’s unemployability and provide reasons and bases for its conclusions. See 38 U.S.C. § 7104(d)(1); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical examination of the justification of the decision” and is not “merely for the purposes of rewriting the opinion so it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1)”.); Sammarco v. Derwinski, 1 Vet.App. 111, 112-14 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). The statement of reasons or bases must be sufficient to “enable a claimant to understand, not only the Board’s decision but also the precise basis for that decision” as well as to facilitate review by this Court. Gilbert, 1 Vet.App. at 56. In denying claims of unemployability, the BVA must provide reasons or bases for a conclusion that the veteran is not precluded from pursuing substantially gainful employment. See Collier, 1 Vet.App. at 416-17; Hyder v. Derwinski, 1 Vet.App. 221, 224 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 169-70 (1991). The conclusory statement that “the Board is not persuaded that the veteran is precluded from engaging in all forms of substantially gainful employment consistent with his relatively young age, college education and work experience” is not sufficient for that purpose. See Hyder, 1 Vet.App. at 224. In the present case, the veteran submitted evidence that he has been found unemployable by the SSA in 1983. Although the Board is required to make its own determination as to unemployability, “at a minimum.... the decision of the A.L.J. in this case is evidence which cannot be ignored and to the extent its conclusions are not accepted, reasons or bases should be given therefor.” Collier, 1 Vet.App. at 417. The Board has failed to give adequate explanatory reasons or bases for rejecting the factual findings of the A.L.J., which were evidence of record in this case. Specifically, the BVA failed to provide reasons or bases for its implicit rejection of the" } ]

[ { "docid": "29274", "title": "", "text": "informant—in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The privilege is designed to protect the government’s sources and to shield citizens who contribute their knowledge to facilitate the prosecution of criminal acts. Still, the tattler’s privilege is not absolute. In determining whether justification for an exception exists, the nisi prius court must balance the interests undergirding the privilege against the accused’s fundamental right to a fair trial, and, in doing so, must take into account the full panoply of relevant circumstances (including the nature of the crime charged, the contours of the defenses asserted, the available means of proving the charges and defenses, and the significance of the informant’s role). See id. at 62, 77 S.Ct. at 628-29; United States v. Martinez, 922 F.2d 914, 920-21 (1st Cir.1991); United States v. Giry, 818 F.2d 120, 130 (1st Cir.1987). To further the policies behind the Roviaro rationale, the trial court’s analysis begins with a presumption favoring confidentiality. Thus, the defendant must carry the devoir of persuasion to show that disclosure is necessary to mounting an adequate defense. See Lewis, 40 F.3d at 1335; Giry, 818 F.2d at 130. This burden is heavy, but not intractable. If, for example, the informant is the sole participant, other than the accused, in the transaction charged, or if the informant is the only person who is in a position to amplify or contradict crucial testimony of government witnesses, then the court may order disclosure. See Roviaro, 353 U.S. at 64, 77 S.Ct. at 629-30; Martinez, 922 F.2d at 920-21; United States v. Bibbey, 735 F.2d 619, 621 (1st Cir.1984). If, however, the informant is merely a source—one who does little more than put a flea in an officer’s ear—the court almost always will deny disclosure. See Lewis, 40 F.3d at 1335; United States v. Batista-Polanco, 927 F.2d 14, 19-20 (1st Cir.1991). Here, the appellant alleges that the confidential informants’ identities would have been helpful in his defense. He notes that CI-1 identified a suspect named Louie as the person who was selling large quantities of cocaine at 151" } ]

[ { "docid": "18101094", "title": "", "text": "significance of the informant’s role.” Robinson, 144 F.3d at 106. The burden is squarely on the defendant to show that disclosure is essential for an adequate defense — and it is a “heavy” one; it is not met by speculating about how useful an informant’s testimony might be, for example. United States v. Cartagena, 593 F.3d 104, 113 (1st Cir.2010) (quoting United States v. Lewis, 40 F.3d 1325, 1335 (1st Cir.1994)). But heavy is not code for impossible. See Robinson, 144 F.3d at 106. Suppose the informant is the only person other than the defendant who has firsthand knowledge of the acts underlying the crime charged. Or suppose the informant is the only one able to amplify or contradict the testimony of a government witness. Either situation may justify disclosure, we have said. Id. (relying on Roviaro). Simplifying things somewhat, Mills has not shown how his case fits one of these scenarios. Or any other equally compelling scenario, as we shall see after applying abuse of discretion review. See id. (stressing how that standard “is quite deferential: the district court’s resolution of a disclosure request should be upheld as long as it comports with some reasonable rendition of the record”). A moment ago we noted that Mills says that knowing the CIs’ names was necessary for the court’s calculation of his drug quantity. The problem for him is that he does not tell us why this is so. Obviously, a defendant must spell out how an informer’s testimony would help whatever defense theory he pins his hopes on. See United States v. Martinez, 922 F.2d 914, 921 (1st Cir.1991). Mills’ story seemed to change like the weather. But the one he ran with at sentencing suggested that the cash reflected in the all-important currency exchange records came either from a money laundering conspiracy involving a major-league Canadian marijuana dealer or from his work as a sea urchin diver and carpenter- — or perhaps both. Yet, devastating to his position, he whispers not even a hint that the CIs could have shed any light on this late-emerging defense. See id. (putting" }, { "docid": "10681960", "title": "", "text": "on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Id.; see also McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). This court has stated that “when the government informant is not an actual participant or a witness to the offense, disclosure is required only in those exceptional cases where the defendant can point to some concrete circumstance that might justify overriding both the public interest in encouraging the flow of information, and the informant’s private interest in his or her own safety.” United States v. Martinez, 922 F.2d 914, 921 (1st Cir.1991). Tzannos, as the party seeking disclosure, bore the burden of persuasion in this analysis. See United States v. Gomez-Genao, 267 F.3d 1, 2 (1st Cir.2001); see also United States v. Perez, 299 F.3d 1, 3-4 (1st Cir.2002) (“[T]he law places the burden squarely on the party seeking disclosure (typically, the- defendant) to demonstrate that knowledge of the identity of a confidential informant is vital to the proper preparation and presentation of his case.”). This court has described this burden as a “heavy” one. United States v. Robinson, 144 F.3d 104, 106 (1st Cir.1998). The government argues that Tzannos has failed to meet this burden and that the court abused its discretion in implicitly holding otherwise. For his part, Tzannos offers no arguments as to why disclosure of the confidential informant’s identity was warranted in this case. Instead, Tzannos puts all of his stock in two arguments, of which we readi ly dispose. His first argument is that he never asked the court to order the disclosure of CI-l’s identity and thus Roviaro does not even apply. The court’s procedure, however, placed the government in a Catch-22: it could not participate in the Franks hearing without risking exposing its informant (or suborning perjury), and it could not explain to the court, beyond the other arguments it made, why the court’s analysis was flawed without effectively disclosing the identity of its informant. That the court did" }, { "docid": "21020442", "title": "", "text": "confidential informant’s identity involves balancing the public interest in protecting the flow of information in a manner necessary for effective law enforcement against an individual’s right to prepare his defense. Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628-29, 1 L.Ed.2d 639 (1957). In making the determination as to whether disclosure is necessary, the court must consider the particular circumstances of the case, including the crime charged, the possible defenses, and the significance of the informer’s testimony. Id. “Where it is clear that the informant cannot aid the defense, the government’s interest in keeping secret his identity must prevail over the defendant’s asserted right of disclosure.” United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992). A defendant seeking disclosure has the burden of proof, and we review the district court’s decision for an abuse of discretion. Id. at 1426. Applying these standards, we are not persuaded by Mr. Sinclair’s argument. Significantly, Mr. Sinclair does not suggest that the confidential informants could provide direct evidence regarding the central issue in his perjury trial — whether Mr. Sinclair lied when he testified about the delivery of the shotgun on September 9, 1994. Rather, Mr. Sinclair explains that the disclosure is necessary in order for him to adequately impeach the government’s witnesses on the basis of their criminal activity and drug abuse. However, both the prosecution and the defense presented other substantial evidence regarding Mr. McMahon’s and Ms. Thomas’s crimes and drug use. There is no indication that the confidential informant could amplify or explain the impeachment evidence already before the jury. On the contrary, any testimony from the informant would be cumulative at best. Therefore, the defendant failed to establish that the confidential informant could aid in his defense or that his need for disclosure outweighed the public’s' need to protect the informant’s identity. The district court thus acted within its discretion in denying Mr. Sinclair’s request for disclosure. 6. Sentencing Offense Level Adjustment Mr. Sinclair asserts that the district court erred in assessing a three-point upward adjustment of his offense level pursuant to United States Sentencing" }, { "docid": "10681963", "title": "", "text": "to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Roviaro, 353 U.S. at 59, 77 S.Ct. 623. The government emphatically argued that the particular circumstances of this case warranted protection of the informant’s identity. It repeatedly stressed during the course of the Franks hearing and in its filings that CI-1 would likely be murdered if his identity were publicly disclosed. It also pointed to Russolillo’s affidavit, which stated that “traditional organized crime families (such as La Cosa Nostra or the Mafia) and other organized crime groups (such as the Winter Hill Gang) in the Boston area have been heavily involved in illegal gaming and bookmaking and have maintained a significant degree of control over organized bookmaking operations,” and that “compromis[ing] the anonymity of the confidential reliable informant [would] mak[e] him/her susceptible to physical harm and/or retribution.” Against the government’s interest in protecting the identity of the informant, we must balance “the fundamental requirements of fairness” and Tzannos’s right to prepare his defense. Roviaro, 353 U.S. at 60, 77 S.Ct. 623. Generally, the defendant’s competing interests are of a lesser magnitude at the suppression stage than at trial. See United States v. Jackson, 918 F.2d 236, 240 (1st Cir.1990) (citing United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)); cf. McCray, 386 U.S. at 312, 87 S.Ct. 1056 (“[T]he Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search.”). These interests are especially weak here, where the informant is not “the sole participant, other than the accused, in the transaction charged,” Robinson, 144 F.3d at 106; was not “the only witness in a position to amplify or contradict the testimony of government witnesses,” Roviaro, 353 U.S. at 64, 77 S.Ct. 623; and in fact had no involvement whatsoever in the crime charged —" }, { "docid": "10681956", "title": "", "text": "a basis for reversal. There are further grounds, however, for reversing the suppression order. Even if Tzannos had proven his first assertion by a preponderance of the evidence, it does not follow that he proved by a preponderance of the evidence that no confidential informant exists. Ultimately, Tzannos must demonstrate, by a preponderance of the evidence, that the affiant, Trooper Russolillo, rather than the informant, made a false statement knowingly and intentionally, or with reckless disregard for the truth. “Allegations of negligence or innocent mistake are insufficient,” Franks, 438 U.S. at 171, 98 S.Ct. 2674, as are allegations going to show that the informant relayed misinformation to the affiant, see id. (“The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.”); United States v. Southard, 700 F.2d 1, 10 (1st Cir.1983) (“Franks’ requirements cannot be satisfied by a showing that an informer lied to an unsuspecting affiant, even when the lie was deliberate.”). Tzannos has not contested the accuracy of any of the substantive information provided by CI-1 to 'Russolillo, and has not explained how Russolillo would have obtained such detailed and accurate information if CI-1 did not exist. Nor has Tzan-nos made any showing of why Russolillo would have reason to lie'. He thus has not met his burden of showing that Russolillo made a false statement knowingly and intentionally, or with reckless disregard for the truth. To the extent that the district court held otherwise, it committed clear error. We hold that the court erred in suppressing the evidence. B. Problems with the District Court’s Procedure at the Franks Hearing The government also appeals (1) the district court’s refusal to hear the government’s one-line explanation of why the procedure that the court devised for the Franks hearing was, in the government’s view, flawed, and (2) the court’s ultimate decision to go forward with the hearing without listening to that explanation. At the Franks hearing, when the government asked to explain to the court, in one sentence, what the government argued was a “fundamental flaw” in the" }, { "docid": "10681948", "title": "", "text": "was and then I am going to suppress it.” Unwilling to go along with the court’s proposed procedure, the government submitted a written request that the court reconsider its rejection of the government’s request to proceed ex parte and in camera. In the alternative, the government requested that the court enter an order suppressing the fruits of the search so that the procedure could be appealed. Tzannos objected and sought to question the three individuals, whom he identified as Jerry Ahearn, Paulie DeStefano, and Joseph McParland. In the ensuing colloquy, the court said that it was willing to allow the three individuals to testify, in part so that a record could be created for the appeal. The government again objected, stating that it could not cross-examine the three individuals. It then agreed to stipulate that if the three individuals were called to testify, they would each testify that he had called Tzannos on August 25, 2003, and that he had never been a confidential informant or made a controlled call for Russolillo. The government emphasized, however, that it was making this stipulation “with the understanding that for the reasons previously explained the government cannot cross-examine these individuals to bring out the truth,” and that “the government is not conceding the truth.” The court then suppressed the evidence seized pursuant to the search warrant. II. We bypass the question of whether Tzannos made the “substantial preliminary showing” necessary to invoke a Franks hearing. Franks, 438 U.S. at 156-57, 98 S.Ct. 2674. Instead, we review de novo the district court’s ultimate decision to suppress the evidence obtained pursuant to the warrant at issue. United States v. Dessesaure, 429 F.3d 359, 365 (1st Cir.2005). We also evaluate, for abuse of discretion, the procedure the district court used at the Franks hearing and the district court’s refusal to hear, ex parte and in camera, the government’s explanation of why that procedure was flawed. Cf. United States v. Valerio, 48 F.3d 58, 62 (1st Cir.1995) (noting that “it is entirely within the discretion of the judge presented with the request to decide whether the disclosure" }, { "docid": "10681965", "title": "", "text": "to wit, possession of firearms and ammunition by a felon, see United States v. Gray, 47 F.3d 1359, 1365 (4th Cir.1995); United States v. Bender, 5 F.3d 267, 270 (7th Cir.1993). Nor has Tzannos shown that the disclosure of the informant’s identity would allow him to meet his burden under Franks. Tzannos has failed to show why disclosure of the identity of CI-1 is warranted in the circumstances of this case. See United States v. Brown, 3 F.3d 673, 679 (3d Cir.1993) (“A defendant who merely hopes (without showing a likelihood) that disclosure will lead to evidence supporting suppression has not shown that disclosure will be ‘relevant and helpful to the defense ... or is essential to a fair determination!.]’ ” (omission in original) (quoting Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623)); United States v. Barone, 787 F.2d 811, 814-15 (2d Cir.1986). The district court’s decision to go forward with its own procedure and to refuse to hear the government’s ex parte, in camera explanation of why that procedure was problematic was an abuse of discretion. III. We reverse the district court’s order suppressing the evidence and remand with instructions to deny the motion to suppress. . The gender of the confidential informant was unspecified; for convenience we use “he.'' . It appears that the police searched Tzan-nos’s entire residence, not just the third floor; indeed, Russolillo’s affidavit described 381 Winthrop Street as \"a one family, three story, wood structure, white siding with black shutters.” . At the Franks hearing itself, however, the court provided a retrospective account of its reasons for granting the hearing: We have a record of people testifying ... the conversations did not take place at a particular time. That is sufficient evidence to trigger a Franks hearing. It isn't like the defendant is just pulling something out of the clouds. We have people who have stated under oath certain facts. And what I want to do is to have them say it on the witness stand.... . That the government requested the entry of the suppression order — after its procedural offer was rejected" }, { "docid": "10681959", "title": "", "text": "is the furtherance and protection of the public interest in effective law enforcement. Id. at 59, 77 S.Ct. 623 (citations omitted). The privilege, while significant, is not absolute. Thus, “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 60-61, 77 S.Ct. 623; see also id. at 60, 77 S.Ct. 623 (holding that “where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged,” and that “[l]ikewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable”). Ultimately, Roviaro requires a “balancing [of] the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Id. at 62, 77 S.Ct. 623. “Whether a proper bal-anee ... [requires] nondisclosure ... must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Id.; see also McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). This court has stated that “when the government informant is not an actual participant or a witness to the offense, disclosure is required only in those exceptional cases where the defendant can point to some concrete circumstance that might justify overriding both the public interest in encouraging the flow of information, and the informant’s private interest in his or her own safety.” United States v. Martinez, 922 F.2d 914, 921 (1st Cir.1991). Tzannos, as the party seeking disclosure, bore the burden of persuasion in this analysis. See United States v. Gomez-Genao, 267 F.3d 1, 2 (1st Cir.2001); see also United States v. Perez, 299 F.3d 1, 3-4 (1st Cir.2002) (“[T]he law places the burden squarely on the party seeking disclosure (typically, the- defendant) to demonstrate that knowledge of the identity of" }, { "docid": "10681944", "title": "", "text": "alia, that “as a matter of practice, he recorded each and every incoming call,” and that “[ajfter a week’s books were settled, he would erase the tapes and record over them.” The district court convened the Franks hearing on September 28, 2005. At the start of the hearing, the district court announced a procedure that neither party had proposed: [Ajccording to the defendant’s proffer of evidence, there are three people [who] spoke [to Tzannos on August 25, 2003]: Paulie, Jerry[,] and Norton. So Paulie, Jerry[,] and Norton at the worst come in and testify that they are not the confidential informant. And I don’t have to hear from anybody claiming to be the confidential informant. And if it turns out that I think that [the controlled] call was not made to [the 6114] line on August 25, 2003, I can determine that there is no basis for whatever exists and allow a motion to suppress, without violating the identity of the confidential informant. Tzannos made no objections to the procedure; indeed, he indicated that the three individuals had already been summoned and that they were outside the courtroom at that moment and ready to testify. The government, however, was far less enthusiastic. It raised two main objections to the procedure. First, it argued that the procedure placed it in a double bind: if one of the three individuals were, in fact, CI-1, but testified on the stand to the contrary, the government would be placed in a position where it would be forced either to knowingly elicit and condone perjurious testimony or to “out” an informant and expose him or her to mortal danger. As a corollary of that argument, the government also noted that “if one of [the three] is the informant and tells the truth, then the Court is eliciting a statement that may get the person killed,” which is “not [a] procedure that the government is prepared to participate in.” Second, the government argued that there was a “fundamental flaw” in the procedure, which it could not explain in open court without providing information that would necessarily" }, { "docid": "18101097", "title": "", "text": "smuggling differed a bit. But they were remarkably in sync on the duration, method, and volume of his misadventures, and their accounts were perfectly consistent both with what had gone down on September 11 and with the full $369,203 being tied to his drug dealing ways — as the court supportably found. Anyway, and as the court also credibly found, one could reasonably work out the drug quantity numbers using the (a)-(f) factors, without touching the CIs’ narratives — meaning their statements were merely “icing on the cake,” as the court colorfully put it. In other words, the CIs’ comments played a peripheral rather than a starring role in the court’s drug quantity analysis, which, also counts against Mills in the disclosure balancing. See Robinson, 144 F.3d at 107. Again, on the other side of the scale is the public interest in encouraging needed information and the informants’ private interest in their safety. See Tzannos, 460 F.3d at 139. And here the record supports the court’s finding that revealing the CIs’ identities posed an obvious risk to their safety. Recall the prior publication of the CIs’ reports on Mills and Smart’s Facebook page. Recall too the veiled threat Mills sent in a letter along with copies of his PSR. The “feds” wanted to hold him culpable for additional drug quantity, he wrote, but “[t]hey will have a hard time” doing that “without someone testifying against me.” The short of it is that the court did its job under the Roviaro line of cases, weighing the right factors, and it defensibly found that — given Mills’ weak showing on one side, and the government’s interest in preserving the CIs’ anonymity on the other — the scale tipped decidedly against disclosure. Consequently, we see nothing remotely resembling an abuse of discretion in the court’s decision to deny Mills’ disclosure motion. B. Calculation of the Drug Quantity Attributable to Mills Mills’ second argument is a slight variation on the one we just rejected. It goes something like this: The court, he says again, should have compelled the government to disclose the CIs’ names." }, { "docid": "10681961", "title": "", "text": "a confidential informant is vital to the proper preparation and presentation of his case.”). This court has described this burden as a “heavy” one. United States v. Robinson, 144 F.3d 104, 106 (1st Cir.1998). The government argues that Tzannos has failed to meet this burden and that the court abused its discretion in implicitly holding otherwise. For his part, Tzannos offers no arguments as to why disclosure of the confidential informant’s identity was warranted in this case. Instead, Tzannos puts all of his stock in two arguments, of which we readi ly dispose. His first argument is that he never asked the court to order the disclosure of CI-l’s identity and thus Roviaro does not even apply. The court’s procedure, however, placed the government in a Catch-22: it could not participate in the Franks hearing without risking exposing its informant (or suborning perjury), and it could not explain to the court, beyond the other arguments it made, why the court’s analysis was flawed without effectively disclosing the identity of its informant. That the court did not require the government to say the actual name of the informant is of little significance; it was requiring the government to provide information that would, for all practical purposes, divulge the informant’s identity. “The privilege identified in Roviaro protects more than just the name of the informant and extends to information that would tend to reveal the identity of the informant.” United States v. Napier, 436 F.3d 1133, 1136 (9th Cir.2006). Tzannos’s second argument as to why Roviaro does not apply is that “if one of the three would-be witnesses turned out to be CI-1, then that witness had voluntarily put himself in the position of having to admit being an informant.” Tzannos’s argument rests on mistaken premises: as we noted above, the Roviaro privilege does not belong to the informant, but rather to the government. Thus, even assuming that CI-1 was one of the three individuals identified by Tzannos, so long as that individual has not voluntarily disclosed his status as an informant to the defendant, the government may still invoke its “privilege" }, { "docid": "22999148", "title": "", "text": "a confidential informer under' an abuse of discretion standard. See United States v. Jackson, 918 F.2d 236, 240 (1st Cir.1990). The courts have long recognized that the Government has a “privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). “The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Id. This privilege, however, is not absolute. Id. at 60-61, 77 S.Ct. at 627-28. “Where the disclosure of an informer’s identity, or the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. The resolution of this issue depends on the particular circumstances of each case. Id. at 62, 77 S.Ct. at 628-29. The trial court must balance the public interest in protecting the flow of information against the individual’s right to prepare his defense. Id. In so doing, it should take into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. Id. The burden is on the defendant to demonstrate that the circumstances demand disclosure; “[mere] speculation ... is not sufficient to meet the heavy burden which rests on an accused to establish that the identity of a confidential informant is necessary to his defense.” United States v. Giry, 818 F.2d 120, 130 (1st Cir.), cert. denied, 484 U.S. 855, 108 S.Ct. 162, 98 L.Ed.2d 116 (1987) (quoting United States v. Skeens, 449 F.2d 1066, 1070 (D.C.Cir.1971)). Where the informant is a “mere tipster,” as opposed to an active participant in the offense charged, disclosure is required only in the exceptional ease where it is vital to a fair trial. United States" }, { "docid": "21061145", "title": "", "text": "hearing will require the government to identify informants. Generally, the government has a right to refuse to confirm or deny the existence or identity of an informant unless a defendant offers evidence of “concrete circumstances that might justify overcoming both the public interest in encouraging the free flow of information and the informant’s private interest in his own safety.” United States v. Estrella, 567 F.2d 1151, 1153 (1st Cir.1977) (internal citation omitted). As the Court of Appeals for the First Circuit has elaborated: The seminal case regarding the duty of the government to identify or produce its informants is Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In Roviaro, the Court recognized “the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Id. at 59, 77 S.Ct. at 627. It specified, however, that “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 60-61, 77 S.Ct. at 627-28. The Court declined to adopt rigid guidelines as to when the privilege should apply, opting instead for requiring the lower courts to balance, under the particular circumstances of each case, “the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Id. at 62, 77 S .Ct. at 628; see also United States v. One 1986 Chevrolet Van, 927 F.2d 39, 43 (1st Cir.1991); Ass’n. for Reduction of Violence v. Hall, 734 F.2d 63, 66 (1st Cir.1984); United States v. Estrella, 567 F.2d 1151, 1152-53 (1st Cir.1977). United States v. Formanczyk, 949 F.2d 526, 529 (1st Cir.1991). Application of the Franks standard and the Roviaro principles to the facts and circumstances now presented persuades the court that the defendants are entitled to the evidentiary hearings and disclosures concerning informants that they seek with regard'to the 1984 and 1985 applications for electronic surveillance, targeting" }, { "docid": "10681964", "title": "", "text": "defense. Roviaro, 353 U.S. at 60, 77 S.Ct. 623. Generally, the defendant’s competing interests are of a lesser magnitude at the suppression stage than at trial. See United States v. Jackson, 918 F.2d 236, 240 (1st Cir.1990) (citing United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)); cf. McCray, 386 U.S. at 312, 87 S.Ct. 1056 (“[T]he Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search.”). These interests are especially weak here, where the informant is not “the sole participant, other than the accused, in the transaction charged,” Robinson, 144 F.3d at 106; was not “the only witness in a position to amplify or contradict the testimony of government witnesses,” Roviaro, 353 U.S. at 64, 77 S.Ct. 623; and in fact had no involvement whatsoever in the crime charged — to wit, possession of firearms and ammunition by a felon, see United States v. Gray, 47 F.3d 1359, 1365 (4th Cir.1995); United States v. Bender, 5 F.3d 267, 270 (7th Cir.1993). Nor has Tzannos shown that the disclosure of the informant’s identity would allow him to meet his burden under Franks. Tzannos has failed to show why disclosure of the identity of CI-1 is warranted in the circumstances of this case. See United States v. Brown, 3 F.3d 673, 679 (3d Cir.1993) (“A defendant who merely hopes (without showing a likelihood) that disclosure will lead to evidence supporting suppression has not shown that disclosure will be ‘relevant and helpful to the defense ... or is essential to a fair determination!.]’ ” (omission in original) (quoting Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623)); United States v. Barone, 787 F.2d 811, 814-15 (2d Cir.1986). The district court’s decision to go forward with its own procedure and to refuse to hear the government’s ex parte, in camera explanation of why that procedure was problematic was an abuse" }, { "docid": "10681943", "title": "", "text": "the government renewed its objection to the Franks hearing. It reiterated its earlier argument that there was no evidence that Russolillo had lied. It also explained that it could not divulge the identity of CI-1 publicly because doing so would endanger the informant’s life. It represented that it was not authorized to disclose the informant’s name without permission from the Department of Justice or the state Attorney General. The government offered instead to prove the veracity of Russolillo’s affidavit and the existence of CI-1 in an ex parte, in camera proceeding, in which it would offer, inter aha, testimony of Russolillo revealing the identity of CI-1. In reply, Tzannos agreed to an in camera proceeding, but objected to the court’s allowing such a proceeding to take place ex parte. Tzannos also requested that the Franks healing be structured as a “full evidentiary hearing,” in which defense counsel would have “the opportunity to eross[-]examine the very affiant whose allegations are at issue.” Finally, Tzannos stated that it was his intention to show at the hearing, inter alia, that “as a matter of practice, he recorded each and every incoming call,” and that “[ajfter a week’s books were settled, he would erase the tapes and record over them.” The district court convened the Franks hearing on September 28, 2005. At the start of the hearing, the district court announced a procedure that neither party had proposed: [Ajccording to the defendant’s proffer of evidence, there are three people [who] spoke [to Tzannos on August 25, 2003]: Paulie, Jerry[,] and Norton. So Paulie, Jerry[,] and Norton at the worst come in and testify that they are not the confidential informant. And I don’t have to hear from anybody claiming to be the confidential informant. And if it turns out that I think that [the controlled] call was not made to [the 6114] line on August 25, 2003, I can determine that there is no basis for whatever exists and allow a motion to suppress, without violating the identity of the confidential informant. Tzannos made no objections to the procedure; indeed, he indicated that the" }, { "docid": "18101093", "title": "", "text": "an informant’s identity is “relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623. One should not go overboard when reading that quote, however. The high Court could not have meant “that the privilege covers only irrelevant and unhelpful” or nonessential “evidence.” See United States v. Gaston, 357 F.3d 77, 84 (D.C.Cir.2004) (explaining why that must be so). A disclosure inquiry is case-specific — there is no “mechanical solution[].” Perez, 299 F.3d at 4. Starting with a presumption in favor of confidentiality, see Robinson, 144 F.3d at 106, a trial court must “balanc[e] the accused’s right to prepare and present his defense against the public interest in acquiring needed information and the informant’s stake in confidentiality,” Perez, 299 F.3d at 4. Other factors that typically go into the mix include “the nature of the crime charged, the contours of the defenses asserted, the available means of proving the charges and defenses, and the significance of the informant’s role.” Robinson, 144 F.3d at 106. The burden is squarely on the defendant to show that disclosure is essential for an adequate defense — and it is a “heavy” one; it is not met by speculating about how useful an informant’s testimony might be, for example. United States v. Cartagena, 593 F.3d 104, 113 (1st Cir.2010) (quoting United States v. Lewis, 40 F.3d 1325, 1335 (1st Cir.1994)). But heavy is not code for impossible. See Robinson, 144 F.3d at 106. Suppose the informant is the only person other than the defendant who has firsthand knowledge of the acts underlying the crime charged. Or suppose the informant is the only one able to amplify or contradict the testimony of a government witness. Either situation may justify disclosure, we have said. Id. (relying on Roviaro). Simplifying things somewhat, Mills has not shown how his case fits one of these scenarios. Or any other equally compelling scenario, as we shall see after applying abuse of discretion review. See id. (stressing how that standard “is" }, { "docid": "10681949", "title": "", "text": "however, that it was making this stipulation “with the understanding that for the reasons previously explained the government cannot cross-examine these individuals to bring out the truth,” and that “the government is not conceding the truth.” The court then suppressed the evidence seized pursuant to the search warrant. II. We bypass the question of whether Tzannos made the “substantial preliminary showing” necessary to invoke a Franks hearing. Franks, 438 U.S. at 156-57, 98 S.Ct. 2674. Instead, we review de novo the district court’s ultimate decision to suppress the evidence obtained pursuant to the warrant at issue. United States v. Dessesaure, 429 F.3d 359, 365 (1st Cir.2005). We also evaluate, for abuse of discretion, the procedure the district court used at the Franks hearing and the district court’s refusal to hear, ex parte and in camera, the government’s explanation of why that procedure was flawed. Cf. United States v. Valerio, 48 F.3d 58, 62 (1st Cir.1995) (noting that “it is entirely within the discretion of the judge presented with the request to decide whether the disclosure [of a confidential informant’s identity] is necessary in order to determine the believability of the testifying officer,” and reviewing for abuse of discretion the trial judge’s refusal to allow an in camera hearing to probe the identity of the informant). As always, factual findings made by a district court in connection with a Franks hearing are reviewed for clear error. Id. A. The Suppression Order “There is ... a presumption of validity with respect to the affidavit supporting the search warrant.” Franks, 438 U.S. at 171, 98 S.Ct. 2674. For this reason, a defendant must meet a high bar even to get a Franks hearing in the first place. In order for a warrant to be voided and the fruits of the search excluded, the defendant must meet an even more exacting standard: he must (1) show that the affiant in fact made a false statement knowingly and intentionally, or with reckless disregard for the truth, (2) make this showing by a preponderance of the evidence, and (3) show in addition that “with the affidavit’s" }, { "docid": "18101085", "title": "", "text": "of the CIs himself, based on the descriptions of their statements, and Mills’ lawyer countered his client would only know who the CIs were if the statements they made were true. The government again discussed how the CIs’ statements were consistent with one another and with the currency exchange records and how Mills’ posting of Cl information on Face-book put them at great risk. And the court warned Mills he was running the risk of not getting any adjustment for acceptance of responsibility as it seemed what he truly wanted was the CIs’ identities in order to declare them snitches to his compatriots, and have retribution taken against them. Ultimately, the court denied the motion. The court found the CIs’ statements were corroborated by other reliable evidence. Comparing Mills’ need for access to the CIs with the physical danger to them, and with the danger of compromising other government investigations, as required under United States v. Tzannos, 460 F.3d 128, 139 (1st Cir.2006), the court stressed Mills had given “no concrete reason to override the [g]overnment’s interest in keeping [their] identities” under wraps. And as for Brady, the court found that case distinguishable from Mills’: Mills sought disclosure at sentencing, not during trial, and Mills “made no showing that disclosure of the CIs’ identities would be either material or favorable.” At the next conference of counsel, Mills’ lawyer said his client would not seek safety valve relief. He also said Mills had hired a private investigator to determine the CIs’ identities. And, he added, he intended to have the investigator testify at the upcoming sentencing hearing so that the court could hear what the investigator learned after talking with some suspected CIs. The court said that was okay and then ticked off the evidence that it already had: (a) Mills’ admission that September 11, 2009 was not his first time smuggling Oxy-Contin into the U.S.; (b) documents showing “enormous amounts of cash, in excess of $300,000,” that Mills had converted from U.S. to Canadian dollars; and (c) evidence showing that Mills’ legitimate sources of income “don’t begin to generate the" }, { "docid": "10681962", "title": "", "text": "not require the government to say the actual name of the informant is of little significance; it was requiring the government to provide information that would, for all practical purposes, divulge the informant’s identity. “The privilege identified in Roviaro protects more than just the name of the informant and extends to information that would tend to reveal the identity of the informant.” United States v. Napier, 436 F.3d 1133, 1136 (9th Cir.2006). Tzannos’s second argument as to why Roviaro does not apply is that “if one of the three would-be witnesses turned out to be CI-1, then that witness had voluntarily put himself in the position of having to admit being an informant.” Tzannos’s argument rests on mistaken premises: as we noted above, the Roviaro privilege does not belong to the informant, but rather to the government. Thus, even assuming that CI-1 was one of the three individuals identified by Tzannos, so long as that individual has not voluntarily disclosed his status as an informant to the defendant, the government may still invoke its “privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Roviaro, 353 U.S. at 59, 77 S.Ct. 623. The government emphatically argued that the particular circumstances of this case warranted protection of the informant’s identity. It repeatedly stressed during the course of the Franks hearing and in its filings that CI-1 would likely be murdered if his identity were publicly disclosed. It also pointed to Russolillo’s affidavit, which stated that “traditional organized crime families (such as La Cosa Nostra or the Mafia) and other organized crime groups (such as the Winter Hill Gang) in the Boston area have been heavily involved in illegal gaming and bookmaking and have maintained a significant degree of control over organized bookmaking operations,” and that “compromis[ing] the anonymity of the confidential reliable informant [would] mak[e] him/her susceptible to physical harm and/or retribution.” Against the government’s interest in protecting the identity of the informant, we must balance “the fundamental requirements of fairness” and Tzannos’s right to prepare his" }, { "docid": "18101092", "title": "", "text": "beyond the amount involved in the charged offense, contending that if the court had required disclosure of the CIs’ names, he could have shown that what they had said was too unreliable for calculating relevant conduct under the sentencing guidelines. Neither persuades. A. Disclosure of the CIS’ Identities Police use confidential informants all the time, particularly in the murky world of drug dealings. See United States v. Perez, 299 F.3d 1, 2-3 (1st Cir.2002). But snitching is dangerous work, and informants literally put their lives on the line by doing what they do. See id. at 3. With so much at stake, confidentiality is key. See id. And that is where the “tattler’s privilege” comes in — that is, the government’s privilege to keep secret the names of persons who give law enforcement information about crimes. United States v. Robinson, 144 F.3d 104, 106 (1st Cir.1998) (discussing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). But important as that privilege is, it is not absolute; where the disclosure of an informant’s identity is “relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623. One should not go overboard when reading that quote, however. The high Court could not have meant “that the privilege covers only irrelevant and unhelpful” or nonessential “evidence.” See United States v. Gaston, 357 F.3d 77, 84 (D.C.Cir.2004) (explaining why that must be so). A disclosure inquiry is case-specific — there is no “mechanical solution[].” Perez, 299 F.3d at 4. Starting with a presumption in favor of confidentiality, see Robinson, 144 F.3d at 106, a trial court must “balanc[e] the accused’s right to prepare and present his defense against the public interest in acquiring needed information and the informant’s stake in confidentiality,” Perez, 299 F.3d at 4. Other factors that typically go into the mix include “the nature of the crime charged, the contours of the defenses asserted, the available means of proving the charges and defenses, and the" } ]

[ { "docid": "19870591", "title": "", "text": "whether Daka International’s actions were wrongful in the first place. The Connecticut Supreme Court has not squarely addressed the issue we face today. But the lower courts are in agreement that generally “there can be no tortious interference of contract by someone who is directly or indirectly a party to the contract.” Baum v. United Cable Television Corp. of E. Conn., 1992 WL 175119, at *4 (Conn.Super.Ct. July 20, 1992) (citing Multi-Service Contractors, Inc. v. Town of Vernon, 193 Conn. 446, 451-52, 477 A.2d 653, 655-56 (1984) (dismissing claim of tortious interference against town officials by a company that contracted with the town because, as the town’s agents, they could not be held liable absent allegations of willful misconduct or lack of good faith)); see, e.g., Walsky v. Gastaldi, 1990 WL 269143, at *2 (Conn.Super.Ct. July 26, 1990). As one court has explained: An agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him hable would be, in effect, to hold the corporation liable in tort for breaching its own contract. An agent, however, can be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain. Murray v. Bridgeport Hosp., 40 Conn.Supp. 56, 60-61, 480 A.2d 610, 613 (1984) (citation omitted); see also Espinosa v. Connecticut College, 1994 WL 320222, at *5-*6 (Conn.Super.Ct. June 27, 1994) (“In order to deprive a corporate employee of his immunity, the plaintiff must establish that he acted solely for his own benefit and benefit to the corporation played no role therein.”); Smith v. Brown, 1992 WL 219300, at *2 (Conn.Super.Ct. Aug. 28, 1992) (requiring an allegation, to state a claim for tortious interference, that “plaintiff engaged in some fraud, misrepresentation, intimidation or molestation, ‘beyond the fact of the interference itself ”); cf. Multi-Service Contractors, 193 Conn. at 451, 477 A.2d 653. In the only Connecticut case which, to our knowledge, involved a" } ]

[ { "docid": "5850543", "title": "", "text": "their own, company’s contracts if they exceed the scope of their authority.” (emphasis added)); The High View Fund, L.P. v. Hall, 27 F.Supp.2d 420, 429-30 (S.D.N.Y.1998) (holding that a director of a corporation “may be held hable for tor-tious interference with the corporation’s contracts if she exceeds the scope of her corporate authority in causing the breach of those contracts.” (emphasis added)); Petkanas, 303 A.D.2d 303, 759 N.Y.S.2d at 2 (“[A] cause of action seeking to hold corporate officials personahy responsible for the corporation’s breach of contract is governed by an enhanced pleading standard.” (citation omitted; emphasis added; internal quotations omitted)); Hoag v. Chancellor, Inc., 246 A.D.2d 224, 677 N.Y.S.2d 531, 534 (1998) (“To establish a corporate officer’s liability for inducing a breach of a contract between the corporation and a third party, the complaint must allege that the officers’ ... acts were taken outside the scope of their employment or that they personahy profited from their acts.” (citations omitted; emphasis added; internal quotations omitted)). The theory underlying this special treatment of corporate officials derives from the principle that one cannot be hable for interfering with one’s own contract. See, e.g., Tejidos Chardin, S.A. v. Turkie, No. 97 Civ. 4643(JSM), 1998 WL 886986, at *1 (S.D.N.Y. Dec.18, 1998) (“Where the corporate officer/director is acting within the scope of his or her authority, the officer/director is not a third party vis-a-vis the corporation and as such can not interfere with its own contract.”); Solow v. Stone, 994 F.Supp. 173, 181 (S.D.N.Y.1998) (“A corporation’s officer or director generally cannot be held liable under a theory of tortious interference for causing the corporation to breach a contract.... [This principle is] consistent with the principle that a defendant cannot tortiously interfere with a contract if he is not a third party unrelated to the contract.” (citations omitted; internal quotations omitted)). Outside of that particular situation — that is, where, -as here, the corporate official’s employer company is not a party to the affected contract—the Second Circuit has held that “a corporate officer who controls corporate conduct and thus is an active individual participant in" }, { "docid": "1725312", "title": "", "text": "burden of defeating that privilege. Quiller v. Barclays American/Credit, Inc., 727 F.2d 1067 (11th Cir.1984). If that privilege protects nothing else, it protects a manager’s right to manage personnel (including firing and hiring) without fear of independent liability, absent concrete and specific allegations that such actions were entirely for the benefit of the individual. Davis at 328. The manager’s privilege thus protects Malik from liability for all causes of action pled herein. As such, the seventh cause of action is dismissed. 4. Interference With Prospective Business Advantage Kacludis’ eighth cause of action purports to state a claim for interference with prospective business advantage. The identical claim was attempted in identical circumstances in Shoemaker. The Supreme Court held that With respect to the tort of interference with prospective economic advantage, plaintiff’s pleading has identified no “prospective economic advantage” other than the continuation of his employment relationship. Thus ... it is in reality identical in substance to plaintiff's claim of inducement of breach of contract. It is axiomatic, however, that there can be no action for inducement of breach of contract against the other party to the contract. It is well established that corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation’s contract. Here, the parties against whom plaintiff seeks recovery on this cause of action are plaintiff’s supervisors: agents of the employer who are vested with the power to act for the employer (rightly or wrongly) in termination plaintiff’s employment. For purposes of this cause of action, then, these defendants stand in the place of the employer, because the employer — the other party to the supposed contract — cannot act except through such agents. Shoemaker, 52 Cal.3d at 24-25, 276 Cal.Rptr. 303, 801 P.2d 1054. Kacludis’ bare allegation that Malik somehow acted outside the scope of the employment relationship in firing Kacludis does not change the analysis here; Malik’s position is factually on all fours with the individual defendants in Shoemaker. As such, the eighth cause of action is dismissed. IV. CONCLUSION In accordance with the" }, { "docid": "10039083", "title": "", "text": "right or business actions.” Blake v. Levy, 191 Conn. 257, 464 A.2d 52, 54 (1983), and Plaintiffs allegations appear sufficient to state a claim under the law of those cases. The only two issues here are: (1) whether Knights may be liable for tortiously interfering with a contract to which it is a party, and (2) whether Kearney and Jenkins, as agents of Knights, may be liable for tortiously interfering with a contract to which their principal is a party. This court has found no case squarely holding that a party to a contract cannot be liable for tortious interference with that contract. See Weeks v. Office of Urban Affairs, No. CV92-0339298, 1994 WL 516561, at *4 (Conn.Super.Ct. Sept.12, 1994) (“The Supreme Court has not decided whether a claim for tortious interference can be made [against] a party to a contract.”). However, it is well established that: [a]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the [principal] liable in tort for breaching its own contract. An agent, however, can be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain. Malik v. Carrier Corp., 202 F.3d 97, 110 (2d Cir.2000) (citing Murray v. Bridgeport Hosp., 40 Conn.Supp. 56, 480 A.2d 610 (1984)). In order to deprive an agent of this immunity, the plaintiff must establish that [the agent] acted solely for his own benefit and benefit to the [principal] played no role therein. Such a defendant is insulated from liability even if his actions were motivated in part by self-interest, provided he believed he was serving the [principal]. Espinosa v. Connecticut College, No. 52-28-72, 1994 WL 320222, at *5 (Conn.Super.Ct. June 27, 1994). Under this case law, Plaintiffs allegations are sufficient to state claims for tortious interference with contract against Knights, Kearney, and Jenkins. Knights is not immune" }, { "docid": "18711425", "title": "", "text": "replead this claim so that it only seeks recovery for mental or emotional impairment that did not arise from a physical injury or occupational disease, and that arose after July 1, 1993. C. Tortious Interference with a Contract The seventh count alleges that Valles, through her “offensive and denigrating remarks to and about” Bennett, and unjust criticism of Bennett’s work, tortiously interfered with Bennett’s contract of employment with Beiersdorf. Defendants argue that this claim cannot be brought against Valles, because she was Beiersdorfs agent. As the court in Murray v. Bridgeport Hospital, 40 Conn.Supp. 56, 480 A.2d 610 (Conn.Super.Ct.1984), put it: [a]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract. An agent, however, can be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain. Id. at 60-61, 480 A.2d 610; accord Bowman v. Grolsche Bierbrouwerij B.V., 474 F.Supp. 725, 733 (D.Conn.1979). An agent may be said to be acting for “personal gain” if she seeks personal financial gain, or if she is motivated by a personal animus. See Murray, 40 Conn.Supp. at 61, 480 A.2d 610 (“[T]ort liability should be swiftly imposed whenever an officer, director, employee or stockholder induces a breach of contract for private benefit or to satisfy personal feelings against a third party.”) (citing Bradkin v. Leverton, 32 A.D.2d 1057, 1058, 303 N.Y.S.2d 1020 (1969)); see also B., Inc. v. Miller Brewing Co., 663 F.2d 545, 553 (5th Cir.1981). Plaintiff argues that an allegation that Valles interfered with Bennett’s promotional opportunities because of Valles’ alleged racial animus amounts to an allegation that Valles used her corporate power improperly for personal gain. We agree. A corporate officer who influences personnel decisions on the basis of racial prejudice can be fairly said to be acting out of" }, { "docid": "17882726", "title": "", "text": "“intentionally procured PIBC’s breach of the settlement agreement entered between PIBC and Mr. Farouki concerning the release of the AEGIS Guaranty,” thereby tortuously interfering with the settlement agreement between Mr. Farouki and PIBC. Id. ¶¶ 102-05. The alleged tort, interference with contractual relations, arises only when there is interference with a contract between the plaintiff and a third party. Newman v. Legal Servs. Corp., 628 F.Supp. 535, 541 (D.D.C.1986); Donohoe v. Watt, 546 F.Supp. 753, 757 (D.D.C.1982), aff'd, 713 F.2d 864 (D.C.Cir.1983). The tort does not lie when the defendant himself is a party to the contract. Farmland Indus., Inc. v. Grain Bd. of Iraq, 904 F.2d 732, 738 (D.C.Cir.1990). “A defendant’s conduct under his own contract with the plaintiff may or may not rise to the level of a breach of that contract, but it cannot support an action for interference with it.” Donohoe, 546 F.Supp. at 757. As a matter of law, a corporate officer is privileged to induce the corporation to violate a contractual relation, provided that the officer does not exceed the scope of his authority or knowingly commit acts that are adverse to the interests of the corporation. See Curaflex Health Servs., Inc. v. Bruni, 899 F.Supp. 689, 695 (D.D.C.1995). In other words, a corporate officer, as an agent of the corporation, cannot be held liable for tortious interference with a contract between the plaintiff and the corporation. Newman, 628 F.Supp. at 541; Donohoe, 546 F.Supp. at 757. As long as a corporate officer acts in the corporation’s interests and is acting within the scope of his authority, his personal motivation for influencing the corporation to breach the contract is irrelevant, even if his actions happen to benefit himself or he acts with ill will towards another. Curaflex, 899 F.Supp. at 695-96. Mr. Old, as General Manager of PIBC, acted on behalf of PIBC when he negotiated the release of the AEGIS Guaranty with Mr. Farouki. In this capacity, Mr. Old is effectively a party to the Guaranty. As such, an action for tortious interference with the Guaranty does not lie against Mr. Old. The" }, { "docid": "19870590", "title": "", "text": "reasons why its action was not tortious. First, it contends that a parent corporation is privileged to protect its subsidiary’s economic interests by directing it to breach an unprofitable contract. Second, it argues that there is no evidence that it employed improper methods to induce Sovereign to breach the lease. Specifically, Daka International denies that there is any evidence whatever that it engaged in intimidating conduct toward any party, and points out additionally that the only intimidation even alleged was towards Boulevard, not towards Sovereign, the party that it supposedly induced to breach the lease. . As the district court noted, a party tortiously interferes with another’s contractual rights whenever, “without justification,” it knowingly interferes in the plaintiffs contractual rights. 852 F.Supp. at 133. Although the district court correctly observed that an otherwise “ ‘legitimate and commendable’” purpose does not excuse the use of wrongful means to interfere with another’s contractual rights, id. (quoting R & W Hat Shop v. Sculley, 98 Conn. 1, 118 A. 55, 59 (1922)), it erred in failing to consider whether Daka International’s actions were wrongful in the first place. The Connecticut Supreme Court has not squarely addressed the issue we face today. But the lower courts are in agreement that generally “there can be no tortious interference of contract by someone who is directly or indirectly a party to the contract.” Baum v. United Cable Television Corp. of E. Conn., 1992 WL 175119, at *4 (Conn.Super.Ct. July 20, 1992) (citing Multi-Service Contractors, Inc. v. Town of Vernon, 193 Conn. 446, 451-52, 477 A.2d 653, 655-56 (1984) (dismissing claim of tortious interference against town officials by a company that contracted with the town because, as the town’s agents, they could not be held liable absent allegations of willful misconduct or lack of good faith)); see, e.g., Walsky v. Gastaldi, 1990 WL 269143, at *2 (Conn.Super.Ct. July 26, 1990). As one court has explained: An agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party," }, { "docid": "18711424", "title": "", "text": "the WCA, and thus could support a tort claim), discussed in Farago v. Pfizer, No. 52 49 11, 1993 WL 171771 (Conn.Super.Ct., New London Judicial District at New London, May 17, 1993); see also Robards v. Gaylord Bros., Inc., 854 F.2d 1152, 1157-58 (9th Cir.1988) (interpreting California’s worker compensation laws as not allowing recovery for negligent infliction of emotional distress when there has been no physical injury or disability, and thus as not barring a tort claim). From the foregoing, it is evident that there are two problems with plaintiffs claim for negligent infliction of emotional distress, as currently pled. First, to the extent it is based on injury occurring before July 1, 1993, it is barred by the exclusivity provision of the WCA. Second, even after the amendment, plaintiffs claim is partially barred, because it seeks compensation not only for “mental or emotional impairment,” but also for physical ailments, including hypoglycemia, fatigue, aggravation of the stomach, and weight loss. Accordingly, defendants’ motion to dismiss is granted as to the sixth count, with leave to replead this claim so that it only seeks recovery for mental or emotional impairment that did not arise from a physical injury or occupational disease, and that arose after July 1, 1993. C. Tortious Interference with a Contract The seventh count alleges that Valles, through her “offensive and denigrating remarks to and about” Bennett, and unjust criticism of Bennett’s work, tortiously interfered with Bennett’s contract of employment with Beiersdorf. Defendants argue that this claim cannot be brought against Valles, because she was Beiersdorfs agent. As the court in Murray v. Bridgeport Hospital, 40 Conn.Supp. 56, 480 A.2d 610 (Conn.Super.Ct.1984), put it: [a]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract. An agent, however, can be held liable for such interference or inducement if he did not act legitimately within his scope" }, { "docid": "10039082", "title": "", "text": "by the jury or other finder of fact. 23 Williston on Contracts § 63:22 (4th ed.2006) (emphasis added). Second, this court has found no case holding that Connecticut is one of “perhaps the majority of [states that] decline[s] to find a breach of the implied covenant of good faith and fair dealing absent breach of an express term of the contract.” Id. In light of these legal principles and Plaintiffs allegations, Defendants’ motions to dismiss Plaintiffs claims are denied without prejudice with leave to renew by motion for summary judgment at the close of discovery. D. Count IV — Tortious Interference with Contract In Count IV of the Complaint, Plaintiff alleges that Defendants Knights, Kearney, and Thomas Jenkins (“Jenkins”) are liable for tortiously interfering with his performance of the Contract. See Amended Compl., ¶¶ 194-215. All three Defendants’ motions to dismiss are denied without prejudice with leave to renew by motion for summary judgment at the close of discovery. The Connecticut Supreme Court “has long recognized a cause of action for tor-tious interference with contract right or business actions.” Blake v. Levy, 191 Conn. 257, 464 A.2d 52, 54 (1983), and Plaintiffs allegations appear sufficient to state a claim under the law of those cases. The only two issues here are: (1) whether Knights may be liable for tortiously interfering with a contract to which it is a party, and (2) whether Kearney and Jenkins, as agents of Knights, may be liable for tortiously interfering with a contract to which their principal is a party. This court has found no case squarely holding that a party to a contract cannot be liable for tortious interference with that contract. See Weeks v. Office of Urban Affairs, No. CV92-0339298, 1994 WL 516561, at *4 (Conn.Super.Ct. Sept.12, 1994) (“The Supreme Court has not decided whether a claim for tortious interference can be made [against] a party to a contract.”). However, it is well established that: [a]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal" }, { "docid": "18617553", "title": "", "text": "Heyman v. Kline, 344 F.Supp. 1110, 1115 (D.Conn.1970), rev’d on other grounds 456 F.2d 123 (2d Cir.), cert. denied 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88 (1972), or for unjustifiably inducing plaintiffs’ customers to cease doing business with plaintiffs, Goldman v. Feinberg, 130 Conn. 671, 37 A.2d 355 (1944), see generally, 45 Am.Jur.2d Interference § 50, p. 322 (1969, Sup.1978), whether or not he acted on behalf of his principal. Scribner v. O’Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975). See 3 Am.Jur.2d Agency § 300, p. 659 (1962, Supp.1978). And while an agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract, Boyce v. American Liberty Insurance Co., 204 F.Supp. 317, 318 (D.Conn.1962); see also Kecko Piping Co. v. Monroe, 172 Conn. 197, 202, 374 A.2d 179 (1977); Shaw v. Merrick, 60 A.D.2d 830, 401 N.Y.S.2d 508, 509 (1st Dept. 1978), de Groen could be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain. See Bradkin v. Leverton, 32 A.D.2d 1057, 303 N.Y.S.2d 1020, 1021 (2d Dept. 1969). The only evidence advanced by plaintiffs to establish jurisdiction over de Groen on this count indicates that on several occasions de Groen or his alleged agents attempted to induce Walter J. Rauscher, an employee of Groenlo, to leave Groenlo’s employ and “throw in his lot” with Grolsche. Plaintiffs claim that “[d]e Groen’s urging of Rauscher ... to break his employment agreement with Groenlo satisfies the first portion of C.G.S. § 52-59b(a)(3) [referring to the commission of a tortious act without the state].” There is no evidence, however, that Rauscher did leave his employment with Groenlo, or that Groenlo or either of the other plaintiffs were damaged in any way by de Groen’s “urging” of Rauscher. The tort" }, { "docid": "23683016", "title": "", "text": "independent tortious act against the plaintiff. See, e.g., Nu-Life Const. Corp. v. Bd. of Educ., 204 A.D.2d 106, 107, 611 N.Y.S.2d 529, 530-31 (1st Dep’t 1994) (granting summary judgment to co-employee accused of inducing employer to breach contract with plaintiff, an independent contractor, where plaintiff “failed to produce evidence ... to prove that [the defendant employee] was at any time acting other than as an agent of the Board or to show that [the defendant employee] committed any independent tort.”) (emphasis added); Miller v. Rickman, 184 A.D.2d 191, 194, 592 N.Y.S.2d 201, 203 (4th Dep’t 1992) (noting that “[t]he complaint fail[ed] to allege that [the defendant] was acting outside the scope of her employment ... or that [the defendant] procured her discharge through fraudulent misrepresentation, threats or the violation of a duty owed to plaintiff by virtue of a confidential relationship”) (emphasis added) (citations omitted); Waldron v. Lutheran Social Services of Upper New York, Inc., 207 A.D.2d 1027, 1028, 617 N.Y.S.2d 665, 665 (4th Dep’t 1994) (tortious interference claim fails “because plaintiff, an at-will employee, offered no proof that defendants made any fraudulent misrepresentations or threats or violated any duty owed to plaintiff based on a confidential relationship”) (citing Miller); Cohen, 926 F.Supp. at 404 (“supervisor is considered to have acted outside the scope of his employment if ... the supervisor’s manner of interference involved independent tortious acts such as fraud or misrepresentations, or [if] ... he acted purely from malice or self-interest”) (emphasis added). Such a rule is consistent with general agency principles as interpreted in New York. See BIB Const. Co. v. City of Poughkeepsie, 204 A.D.2d 947, 948, 612 N.Y.S.2d 283, 285 (3d Dep’t 1994) (an agent “cannot be held liable for inducing [its] principal ... to breach its contract with plaintiff .... except ] ... when an agent does not act in good faith and commits independent torts or predatory acts directed at another for personal pecuniary gain”). It is also consistent with the rule that a corporate officer can be held liable for interfering with an employee’s relationship with the corporation if he or she" }, { "docid": "11896636", "title": "", "text": "if Capelli were acting outside of the scope of his authority as an agent of Endress, (PL’s Resp. to M.S.J. at 14 n. 5), he could be liable for interference with the contract. See, e.g., Malik v. Carrier Corp., 202 F.3d 97, 109 (2d Cir.2000) (internal citations omitted) (under Connecticut law, an agent of the contracting party can be held liable for tortious interference if he does not act legitimately within the scope of his duty but used the corporate power improperly for personal gain). There is no evidence that Cappelli acted outside the scope of his authority. Indeed, Lucey, the president of Endress, ratified his conduct in soliciting Planitzer. For example, an administrative assistant sent the cover letter and cancellation addendum, of which the cover letter indicated to Vaughan to do the following: “Please sign both copies and return them to me. After Todd [Lucey] signs them, I will return one copy to you for your contract file.” (10— 30-06 Cover Letter, attached as Ex. 1 to PL’s M.S.J.). Any suggestion that there is a factual dispute regarding Cappelli’s tortious interference because he might benefit financially, which Cappelli denies, must fail given there is no evidence that his actions in speaking to Planitzer were not in furtherance of his managerial duties and were outside the scope of his authority as an agent of Endress. See Malik, 202 F.3d at 110 (actions taken by manager of contracting party for his own benefit were insufficient to submit to jury in action for tor-tious interference against him because they were in furtherance of his duties as manager). This claim against Cappelli is dismissed. With respect to Boleky and Planitzer, the two defendants argue that the affirmative defense of justification applies under West Virginia law. (Integ. Pretr. Order at 13). If a plaintiff makes a prima facie case, a defendant may prove justification or privilege, affirmative defenses. Defendants are not liable for interference that is negligent rather than intentional, or if they show defenses of legitimate competition between plaintiff and themselves, their financial interest in the induced party’s business, their responsibility for another’s" }, { "docid": "4706992", "title": "", "text": "his authority for the corporation and not on his own behalf, is not a third party. To hold him liable in tort for the corporation’s breach of contract, additional facts are required which are nowhere pleaded in plaintiff’s state court complaint, as, for example, that Joseph acted for his own benefit or outside the scope of his authority. The third cause of action in the state court proceeding was similar to the second, except that the act alleged was conspiracy to procure a breach of contract. This allegation also falls short of establishing an act which was done maliciously. When officers and directors of a corporation conspire to breach a contract, they are not individually liable where they acted in the interest of the corporation, did not exceed their authority, and did not act with the purpose of benefiting themselves rather than the corporation. 20 N.Y.Jur.2d § 9 (1982). Absent allegations from the state court pleading that Joseph acted in bad faith, or for his own benefit, or beyond the scope of his authority, that pleading does not establish prima facie the tort of willful and malicious injury. For the foregoing reasons, the defendant’s motion to dismiss is granted. Settle judgment. . Section 27 of the Restatement of Judgments (2d) states the doctrine as follows: “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or similar claim.” Id, § 27. . Officers and directors who convert goods for their own use have been held personally liable because the officer clearly is not acting on behalf of the corporation, but for his own interest against the corporation. Navarro v. Fiorita, 271 App.Div. 62, 64, 62 N.Y.S.2d 730, 732 (1st Dep’t 1946). Similarly, officers can be held liable for separate tortious acts such as trespass and fraud. See Greyhound Corp. v. Commercial Cas. Ins., supra. . New York has also recognized that a major stockholder is privileged to interfere with" }, { "docid": "23683017", "title": "", "text": "offered no proof that defendants made any fraudulent misrepresentations or threats or violated any duty owed to plaintiff based on a confidential relationship”) (citing Miller); Cohen, 926 F.Supp. at 404 (“supervisor is considered to have acted outside the scope of his employment if ... the supervisor’s manner of interference involved independent tortious acts such as fraud or misrepresentations, or [if] ... he acted purely from malice or self-interest”) (emphasis added). Such a rule is consistent with general agency principles as interpreted in New York. See BIB Const. Co. v. City of Poughkeepsie, 204 A.D.2d 947, 948, 612 N.Y.S.2d 283, 285 (3d Dep’t 1994) (an agent “cannot be held liable for inducing [its] principal ... to breach its contract with plaintiff .... except ] ... when an agent does not act in good faith and commits independent torts or predatory acts directed at another for personal pecuniary gain”). It is also consistent with the rule that a corporate officer can be held liable for interfering with an employee’s relationship with the corporation if he or she commits independent torts in the process. See, e.g., Bonanni v. Straight Arrow Publishers, Inc., 133 A.D.2d 585, 586, 520 N.Y.S.2d 7, 8 (1st Dep’t 1987); Buckley v. 112 Central Park South, Inc., 285 A.D.2d 331, 333-35, 136 N.Y.S.2d 233, 235-36 (1st Dep’t 1954). The district court concluded that neither Buono nor Loksen acted outside the scope of their authority as employees of the Hospital and thus were not “third parties” who could be held liable for tortious interference with the at-will employment arrangement between Albert and the Hospital. As to Buono, this conclusion was clearly correct. There is no evidence that Buono did anything more than compile a report on Albert’s conduct based on information from Loksen and Dlugy. Albert points to nothing in the record to indicate that Buono was independently responsible for any misrepresentations or that she acted with malice of any kind. Albert has thus failed to produce evidence either that Buono was a third party for purposes of a tortious interference claim, Kosson, 203 A.D.2d at 113, 610 N.Y.S.2d at 228-29," }, { "docid": "10039084", "title": "", "text": "and a third party, because to hold him liable would be, in effect, to hold the [principal] liable in tort for breaching its own contract. An agent, however, can be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain. Malik v. Carrier Corp., 202 F.3d 97, 110 (2d Cir.2000) (citing Murray v. Bridgeport Hosp., 40 Conn.Supp. 56, 480 A.2d 610 (1984)). In order to deprive an agent of this immunity, the plaintiff must establish that [the agent] acted solely for his own benefit and benefit to the [principal] played no role therein. Such a defendant is insulated from liability even if his actions were motivated in part by self-interest, provided he believed he was serving the [principal]. Espinosa v. Connecticut College, No. 52-28-72, 1994 WL 320222, at *5 (Conn.Super.Ct. June 27, 1994). Under this case law, Plaintiffs allegations are sufficient to state claims for tortious interference with contract against Knights, Kearney, and Jenkins. Knights is not immune to Plaintiffs claim, see Weeks, 1994 WL 516561, at *4, and if Kearney and Jenkins acted as Plaintiff has alleged, they probably exceeded the scope of their authority as agents of Knights. See Bridgeport Harbor Place I LLC v. Ganim, No. X06CV040184523S, 2006 WL 493352, at *2 (Conn.Super.Ct. Feb.16, 2006) (denying defendant agents’ motions to dismiss, because “plaintiff has alleged facts, which, if proven, establish that the ... defendants acted outside of their authority as agents ... in the actions they took to interfere with the plaintiffs contract”). Therefore, all three Defendants’ motions to dismiss are denied without prejudice with leave to renew by motion for summary judgment at the close of discovery. E. Count Y — Retaliation and Unfair Insurance Practices In Count V of the Complaint, Plaintiff alleges that Defendant Aetna: (1) illegally retaliated against Plaintiff for filing an age discrimination claim, see Amended Compl., ¶ 217, and (2) violated Pennsylvania and Connecticut statutes prohibiting unfair insurance practices and bad faith conduct by insurers. See Amended Compl., ¶¶ 219, 222, 225, 231. 1." }, { "docid": "11896635", "title": "", "text": "2005 or 2006 in which Cappelli inquired as to Planitzer’s interest in Cavcon’s territory. (Cappelli Depo. at 7-14, attached as Ex. C to PL’s Resp. to M.S.J.). The second involved Cappelli’s prior relationship with Boleky in an attempt to suggest that Cappelli benefitted financially from the replacement of Cavcon with Boleky because of his father-in-law’s sale of Staples’ territory to and subsequent employment with Boleky. (PL’s Resp. to M.S.J. at 13). Cappelli first responds he cannot be liable for tortious interference, or conspiracy to commit it, as an agent of En-dress, which was a party to the contract. (Defs.’ Memo, in Supp. of M.S.J. at 21-22). It is axiomatic that a party to a contract may not interfere with its own contract, particularly when it can terminate it without cause. See Rao v. Rao, 718 F.2d 219, 225 (7th Cir.1983). It is claimed by Cap-pelli that his job included reviewing sales representatives in his area, of which the West Virginia territory was a part. (Defs.’ Memo, in Supp. of M.S.J. at 22). Cavcon counters that, if Capelli were acting outside of the scope of his authority as an agent of Endress, (PL’s Resp. to M.S.J. at 14 n. 5), he could be liable for interference with the contract. See, e.g., Malik v. Carrier Corp., 202 F.3d 97, 109 (2d Cir.2000) (internal citations omitted) (under Connecticut law, an agent of the contracting party can be held liable for tortious interference if he does not act legitimately within the scope of his duty but used the corporate power improperly for personal gain). There is no evidence that Cappelli acted outside the scope of his authority. Indeed, Lucey, the president of Endress, ratified his conduct in soliciting Planitzer. For example, an administrative assistant sent the cover letter and cancellation addendum, of which the cover letter indicated to Vaughan to do the following: “Please sign both copies and return them to me. After Todd [Lucey] signs them, I will return one copy to you for your contract file.” (10— 30-06 Cover Letter, attached as Ex. 1 to PL’s M.S.J.). Any suggestion that there is" }, { "docid": "21032509", "title": "", "text": "the Complaint. V. Tortious Interference with Contract (Count V) French contends that the Defendants tortiously interfered with her employment contract with Eagle, specifically alleging that they harassed and defamed her, treated her unequally, and wrongfully disciplined her in hopes of inducing her to resign her position. Under Minnesota law, to prevail on a claim for tortious interference with an employment contract, a plaintiff must prove the following: (1) the existence of a contract; (2) defendant knew of the contract; (3) defendant intentionally procured a breach of the contract without justification; and (4) plaintiff suffered injuries as a direct result of the defendant’s actions. See H Enters. Int’l, Inc. v. General Elec. Capital Corp., 833 F.Supp. 1405, 1419 (D.Minn.1993); Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 900 (Minn.1982). As a matter of law, however, a party cannot tortiously interfere with its own contract. See Ulrich v. City of Crosby, 848 F.Supp. 861, 872 (D.Minn.1994); Nordling v. Northern States Power Co., 478 N.W.2d 498, 505 (Minn.1991); Bouten, 321 N.W.2d at 900-01. Furthermore, the Minnesota Supreme Court has stated If a corporation’s officer or agent acting pursuant to his company duties terminates or causes to be terminated an employee, the actions are those of the corporation; the employee’s dispute is with the company employer for breach of contract, not the agent individually for a tort. Nordling, 478 N.W.2d at 505. An agent may be personally liable for tortious interference, however, if he has acted outside the scope of his duties. See id. at 506; Bouten, 321 N.W.2d at 901. . In the instant case, it is clear that Eagle is entitled to summary judgment on French’s tortious interference claim. Furthermore, French has failed to provide sufficient evidence that any of the individual defendants were acting outside of the scope of their supervisory duties in managing or disciplining her. The Court has granted summary judgment in favor of the Defendants on all claims of harassment, defamation, and disparate treatment. None of these claims, therefore, can provide a reasonable basis for the Court to infer that the individual defendants ever acted outside the" }, { "docid": "18711426", "title": "", "text": "of duty but used the corporate power improperly for personal gain. Id. at 60-61, 480 A.2d 610; accord Bowman v. Grolsche Bierbrouwerij B.V., 474 F.Supp. 725, 733 (D.Conn.1979). An agent may be said to be acting for “personal gain” if she seeks personal financial gain, or if she is motivated by a personal animus. See Murray, 40 Conn.Supp. at 61, 480 A.2d 610 (“[T]ort liability should be swiftly imposed whenever an officer, director, employee or stockholder induces a breach of contract for private benefit or to satisfy personal feelings against a third party.”) (citing Bradkin v. Leverton, 32 A.D.2d 1057, 1058, 303 N.Y.S.2d 1020 (1969)); see also B., Inc. v. Miller Brewing Co., 663 F.2d 545, 553 (5th Cir.1981). Plaintiff argues that an allegation that Valles interfered with Bennett’s promotional opportunities because of Valles’ alleged racial animus amounts to an allegation that Valles used her corporate power improperly for personal gain. We agree. A corporate officer who influences personnel decisions on the basis of racial prejudice can be fairly said to be acting out of personal animus, rather than in the corporate interests (unless, of course, the corporation itself has a policy of racial discrimination, which defendants obviously are not claiming). However, the allegation that racial animus was behind Valles’ alleged tortious interference with Bennett’s employment contract is only made in plaintiffs motion papers, rather than in the complaint. The complaint does allege that both Valles and Beiersdorf subjected Bennett to differential treatment on account of her race, but this claim is not incorporated into the tortious interference claim. At best, the tortious interference claim vaguely alludes to racial animus (“The Defendant Valles made many offensive and denigrating remarks to and about the Plaintiff.”) Accordingly, defendants’ motion to dismiss is granted as to the seventh count, with leave to replead. D. More Definite Statement In addition to requesting dismissals of several counts, as discussed above, the defendants move for a more definite statement as to two other counts. The third count states that Bennett took courses to prepare herself for promotion, trained numerous Beiersdorf employees, and expressed to her superiors" }, { "docid": "18617552", "title": "", "text": "franchisees that American Sales was about to lose its sole and exclusive right to Grolsch beer products . in the United States .- . . ; and by creating a new company ... to replace plaintiffs as the sole importers . in the United States . . . .” Plaintiffs rely exclusively on Conn. Gen.Stat. §§ 52-59b(a)(2) & (3) to establish personal jurisdiction over de Groen. Section 52-59b(a)(2) permits the exercise of personal jurisdiction over a defendant as to any cause of action arising out of a tort committed within the state. Section 52-59b(a)(3) permits the exercise of jurisdiction under certain enumerated circumstances as to any cause of action arising out of a tort committed outside the state that causes injury to person or property within the state. To defeat the present motion to dismiss for lack of personal jurisdiction, the first jurisdictional fact plaintiffs must establish is that, prima facie, a tort was committed. De Groen could be held liable for unjustifiably inducing plaintiffs’ employees to leave their employ with or without secret information, Heyman v. Kline, 344 F.Supp. 1110, 1115 (D.Conn.1970), rev’d on other grounds 456 F.2d 123 (2d Cir.), cert. denied 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88 (1972), or for unjustifiably inducing plaintiffs’ customers to cease doing business with plaintiffs, Goldman v. Feinberg, 130 Conn. 671, 37 A.2d 355 (1944), see generally, 45 Am.Jur.2d Interference § 50, p. 322 (1969, Sup.1978), whether or not he acted on behalf of his principal. Scribner v. O’Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975). See 3 Am.Jur.2d Agency § 300, p. 659 (1962, Supp.1978). And while an agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract, Boyce v. American Liberty Insurance Co., 204 F.Supp. 317, 318 (D.Conn.1962); see also Kecko Piping Co. v. Monroe, 172 Conn. 197, 202, 374 A.2d 179 (1977);" }, { "docid": "5850544", "title": "", "text": "from the principle that one cannot be hable for interfering with one’s own contract. See, e.g., Tejidos Chardin, S.A. v. Turkie, No. 97 Civ. 4643(JSM), 1998 WL 886986, at *1 (S.D.N.Y. Dec.18, 1998) (“Where the corporate officer/director is acting within the scope of his or her authority, the officer/director is not a third party vis-a-vis the corporation and as such can not interfere with its own contract.”); Solow v. Stone, 994 F.Supp. 173, 181 (S.D.N.Y.1998) (“A corporation’s officer or director generally cannot be held liable under a theory of tortious interference for causing the corporation to breach a contract.... [This principle is] consistent with the principle that a defendant cannot tortiously interfere with a contract if he is not a third party unrelated to the contract.” (citations omitted; internal quotations omitted)). Outside of that particular situation — that is, where, -as here, the corporate official’s employer company is not a party to the affected contract—the Second Circuit has held that “a corporate officer who controls corporate conduct and thus is an active individual participant in that conduct is liable for the torts of the corporation.” State of New York v. Shore Realty Corp., 759 F.2d 1032, 1052 (2d Cir.1985). Likewise, this Court has previously held that “New York law provides that a corporate officer who participates in the commission of a tort, even if he acts on behalf of the corporation and in the course of his corporate duties, may ordinarily be held individually responsible.” Davidcraft Corp. v. Danu Int'l Inc., No. 90 Civ. 6578(CMM), 1992 WL 162997, at *6 (S.D.N.Y. June 24, 1992); Nat’l Survival Game v. Skirmish, USA Inc., 603 F.Supp. 339, 341 (S.D.N.Y. 1985) (same). The contract that is the subject of TVT’s tortious interference claim is the Heads of Agreement. Indeed, while TVT asserted a breach of contract claim against IDJ for breaching the Side Letter Agreement, no corresponding claim was asserted against Cohen, presumably in recognition of this line of authority. Because, for reasons previously indicated, IDJ was not a party to the Heads of Agreement, the heightened showing of malice, personal gain, and activity" }, { "docid": "9490372", "title": "", "text": "accusations, took no action against the supervisor, and discharged the complaining employees. The employees sued the supervisor and the officer for tortious interference with a business relationship, alleging that both had “intentionally and maliciously” caused the company to discharge them in retaliation for truthfully reporting the kickbacks, and in order to suppress the information the plaintiffs had obtained. The appellate court explained that an action for tortious interference will not lie against a party to the contract. In addition, an officer or director of a corporation will not be held independently personally liable for inducing the corporations’s breach of its contract, if the officer or director’s action is within the scope of his official duties on behalf of the corporation. In the present case it is undisputed that [defendants] Platt and di Scipio were the supervisors of [plaintiffs] Martin and Niemann. It is uncontroverted that the decision to hire and fire executive level employees at Magnavox rested with the employee’s immediate superior. The discharges were within the scope of the duties of Platt and di Seipio, and no action will lie against them on the theory of interference with a contractual relationship. The trial court correctly held the officers were entitled to judgment as a matter of law. 386 N.E.2d at 1027 (citations omitted). The Indiana Court of Appeals reaffirmed this principle in Biberstine v. New York Blower Co., 625 N.E.2d 1308, 1318 (Ind.App.1993) (officer or director not liable for inducing corporation’s breach of contract if officer or director acted within scope of duties, citing Martin). Martin v. Platt directly addresses Leslie’s principal argument in this case. She argues that Languell acted for improper personal motives when she retaliated against Leslie and refused to accommodate her physical restrictions: “But when she allowed her personal feelings of pride, jealousy, anger, revenge and malice to color her actions toward Leslie, she stepped outside her role as supervisor. She acted in a personal way against Leslie.” Pl.Br. at 8-9. Leslie adds: Although such standard management actions as hiring, firing, and transferring employees may fall within a supervisor’s scope of employment, some acts may" } ]

[ { "docid": "22065619", "title": "", "text": "his death, and. might be revived against his personal representative. In the case of United States v. Daniel, 6 How. 11, which was an action against one who had in his lifetime been marshal of a district, to recover damages which the plaintiffs had sustained by reason of false returns made on certain executions by one of defendant’s deputies, it was held that the action did not survive, because the decedent had received no benefit and had not increased his estate by means of the wrongful act: The court, referring to the common law, said: “ If the person charged has secured no benefit to himself at the expense of the sufferer, the cause of action is said' not to survive; but where, by means of the offence, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor.....If the deputy marshal, in ’the misfeasance complained of, received money or property, the marshal being responsible for such acts, the causé of action survived against his executors. But this is not the case made in the present action.” ■ Now the gravamen of the plaintiff’s complaint is that he was compelled to pay the defendant the sum of $3062.28 to protect his property from unlawful seizure for illegal taxes. In such cases, having paid under protest, he can recover in an action of assumpsit the amount thus wrongfully taken from him. “ Appropriate remedy to recover back money paid under protest on account of duties or taxes erroneously or illegally assessed is an action of assumpsit for money had and received. Where the party voluntarily pays the money he is without remedy; but if he pays it by compulsion of law, or under protest, or with notice that he intends to bring suit to test the validity of the claim, he may recover it back, if the assessment was erroneous or illegal, in an action of assumpsit for money had and received.” Philadelphia v. The Collector, 5 Wall. 720, 731. See also Dooley v. United States, 182 U. S. 222. It" } ]

[ { "docid": "22814964", "title": "", "text": "any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty.” A recovery for acts done by the defendant is the only one contemplated by the words “ by him.” The same is true of Rev. Stats., § 771, requiring District Attorneys to defend such suits. No different conclusion results from the Act of February 8, 1899, c. 121, 30 Stat. 822. That is a general provision that a suit by or against an “ officer of the United States ill his official capacity ” should not abate by reason of his death, or the expiration of his term of office, &c., but that the Court upon motion within twelve months showing the necessity for the survival of the suit to obtain a settlement of the question involved, may allow the same to be maintained by or against his successor in office. Whether this would apply to a suit of the present kind is at least doubtful. Roberts v. Lowe, 236 Fed. 604, 605. In Patton v. Brady, 184 U. S. 608, a suit against a collector begun after the passage of this statute, it was held that it could be revived against his executrix, which shows again that the action is personal; as also does the fact that the collector may be held liable for interest. Erskine v. Van Arsdale, 15 Wall. 75. Redfield v. Bartels, 139 U. S. 694. But in any event the statute supposes a suit already begun against the officer in his lifetime. We need not consider the remedies against the United States. United States v. Emery, Bird, Thayer Realty Co., 237 U. S. 28; Sage v. United States, 250 U. S. 33. It appears to us plain without further discussion that both questions must be answered: No. Answers to Questions 1 and 2- No. Mr. Justice McKenna and Mr. Justice Clarke dissent." }, { "docid": "23669862", "title": "", "text": "claimed was more than $19,009, but they assert that the amendment has removed the limitation as to ainount in such a suit as this. The amendment added to section 24 a paragraph which reads as follows (44 Stat. 121): “Concurrent with the Court of Claims, of any suit or proceeding, commenced after the passage of the Revenue Act of 1921, 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 any sum alleged to have been excessive or in any manner wrongfully collected, under the internal-revenue laws, even if the claim exceeds $10,000, if the collector of internal revenue by whom such tax, penalty, or sum was collected is dead or is not in office as collector of internal revenue at the time such suit or proceeding is commenced.” It is apparent that this amendment enlarges the District Court’s jurisdiction by giving claimants wbo allege that money has been wrongfully collected under the internal revenue laws the privilege of suing the United States regardless of the amount of the claim, but only on condition that “the collector of internal revenue by whom such tax, penalty or sum was collected” is dead or out of office. This condition makes apparent the intent of the legislation, namely, to permit suit against the United States as an alternative to a suit against a deceased or retired collector. Of suits against a collector, the District Court already had jurisdiction unlimited as to amount. Jud. Code § 24(5) 28 USCA § 41 (5). Such a suit was personal to the collector, would survive his retirement from office and would not abate upon his death. See Smietanka v. Indiana Steel Co., 257 U. S. 1, 42 S. Ct. 1, 66 L. Ed. 99; Union Trust Co. v. Wardell, 258 U. S. 537, 42 S. Ct. 393, 66 L. Ed. 753; Patton v. Brady, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713. We think it clear that the suits allowed under the amendment must" }, { "docid": "11938917", "title": "", "text": "guilty of laches in unreasonably delaying the prosecution of his claim”, a point not urged here. U.S.Code, Title 28, § 842, 28 U.S.C.A. § 842, provides: “When a recovery is had in any suit or proceeding against a collector * \" * * for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.” The effect of such statute is shown by the following quotation from Smietanka v. Indiana Steel Co., 257 U.S. 1, 4, 42 S.Ct. 1, 66 L.Ed. 99: “As the law stood before later statutes a collector was liable personally for duties mistakenly collected, if the person charged gave notice, at the time of his intention to sue, and warning not to pay over the amount to the Treasury. * * * But after an Act of Congress had required collectors to pay over such monies, it was held * * * that the personal liability was gone. * * * ” The effect of the certificate of probable cause is to convert the claim into one against the United States when, but not until, the certificate is given. Accordingly, the United States is not liable for interest on a judgment from its date to the date of the certificate of probable cause, because when the obligation of the United States arises, it is an obligation to pay the amount of the judgment only, interest on such judgment being forbidden by the general rule regarding interest above alluded to. However, the liability of the United States is, as provided in the statute, for the amount of the “final judgment” and until" }, { "docid": "4510084", "title": "", "text": "of the revenue for * * * the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies” either (1) “that there was probable cause for the act done by the collector or other officer, or (2) that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.” In United States v. Sherman, 98 U.S. 565, 25 L.Ed. 235, 1878, (as interpreted in Moore Ice Cream Co. v. Rose, supra) it was held that the effect of the filing of such a certificate is to convert the suit into one against the United States. Nevertheless, in Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 416, 63 L.Ed. 828, 1919, it was held that, in a suit against the United States for a tax refund, a judgment for part of the claim, entered in a prior suit against the Collector, raising the same issues, was not res judicata. The court said that, under the statute, “the judgment is to be paid * * * if a certificate is granted by the Court that there was probable cause for his [the Collector’s] act”. But it said that a suit against a Collector “is personal [in] its incidents”, and that \"at the time the judgment is entered the United States is a stranger”, because, only if the court, after the entry of judgment, finds that there was probable cause, will the certificate be issued. This thesis was explained in Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 2, 66 L.Ed. 99, 1921; there the tax had been collected by Collector Fitch, but suit for recovery was brought against his successor, Smietanka; the court held that the suit must be dismissed, because not authorized by statute; in that connection the court" }, { "docid": "6369817", "title": "", "text": "1923. Each of the defendants filed a separate demurrer to the complaint, relying on two grounds. The first ground in each of the demurrers is that it appears from the complaint that the taxes were paid voluntarily and without compulsion or duress, and without protest on the part of the plaintiff. The second ground of the demurrer of the defendant Mee is that the taxes sought to be recovered in the first and second counts of the complaint were not paid to nor received by him, either in his official or individual capacity, but as shown in these counts they were paid to and received by his codefendant Coffey, then the collector of internal revenue for that district. The second cause of demurrer of the defendant Coffey is upon the same ground as that of the defendant Mee, except that it applies only to the third count, which alleges that the tax was paid to and received by his codefendant Mee, who was then the collector of internal revenue for that district. The demurrers were by the court overruled, and, the defendants declining to plead further, judgment was entered against both defendants for the entire amounts claimed in all three counts, with interest at 7 per cent, per annum and the costs of the suit. As to the second grounds of demurrer, the court was clearly in error. Each defendant acted separately, and if plaintiff is entitled to judgment it can only recover from the collector to whom it made the payments. Sage v. United States, 250 U. S. 33, 39 Sup. Ct. 415, 63 L. Ed. 828; Smietanka, Collector, v. Indiana Steel Co., 257 U. S. 1, 42 Sup. Ct. 1, 66 L. Ed. 99; Union Trust Co. v. Wardell, 258 U. S. 537, 42 Sup. Ct. 393, 66 L. Ed. 753. In Patton v. Brady, Executrix, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713, it was held that such an action against the collector survives his death, and his executor is the proper and only party to be substituted as the defendant, as the" }, { "docid": "23669863", "title": "", "text": "the privilege of suing the United States regardless of the amount of the claim, but only on condition that “the collector of internal revenue by whom such tax, penalty or sum was collected” is dead or out of office. This condition makes apparent the intent of the legislation, namely, to permit suit against the United States as an alternative to a suit against a deceased or retired collector. Of suits against a collector, the District Court already had jurisdiction unlimited as to amount. Jud. Code § 24(5) 28 USCA § 41 (5). Such a suit was personal to the collector, would survive his retirement from office and would not abate upon his death. See Smietanka v. Indiana Steel Co., 257 U. S. 1, 42 S. Ct. 1, 66 L. Ed. 99; Union Trust Co. v. Wardell, 258 U. S. 537, 42 S. Ct. 393, 66 L. Ed. 753; Patton v. Brady, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713. We think it clear that the suits allowed under the amendment must ho of the same kind as those for which they are a substitute. In other words, after the amendment, if the collector by whom the tax was wrongfully collected is still in office, the suit must, as before, be brought against him, if the claim exceeds $10,000; hut, if he is out of office, then it may be brought in the District Court against the United States regardless of the amount claimed. Hence, unless the plaintiff’s suit is one that could be brought against a collector, it is not within the jurisdiction conferred on District Courts by the amendment. Accepting the appellants’ theory of their suit, the cause of action is grounded upon the Commissioner’s determination evidenced by his certificate of overassessment. Bonwit Teller & Co. v. United States, 283 U. S. 258, 265, 51 S. Ct. 395, 75 L. Ed. 3018. The liability of the United States rests upon an implied promise to pay the allowed refund. United States v. Real Estate Savings Bank, 104 U. S. 728, 733, 26 L. Ed. 908; United" }, { "docid": "4510086", "title": "", "text": "said: “To show that the action still is personal, as laid down in Sage v. United States, 250 U.S. 33, 37, 39 S.Ct. 415, 63 L.Ed. 828, it would seem to be enough to observe that when the suit is begun it cannot be known with certainty that the judgment will be paid out of the Treasury. That depends upon the certificate of the Court in the case. It is not to be supposed that a stranger to an unwarranted transaction is made answerable for it; yet that might be the result of the suit if it could be brought against a successor to the collectorship. A personal execution is denied only when the certificate is given.” In Graham & Foster v. Goodcell, 282 U.S. 409, 430, 51 S.Ct. 186, 194, 75 L.Ed. 415, 1931, the court, in passing, rejected an argument that the United States, without substituting another remedy, could enact a valid statute depriving citizens of the right to recover from a Collector monies unlawfully collected by him, saying: “Such an action is personal and not against the United States”, citing the Sage and Smietanka cases. In Bankers Pocahontas Coal Co. v. Burnet, 287 U.S. 308, 53 S.Ct. 150, 77 L.Ed. 325, 1932, it was held, on the authority of the Sage and Smietanka cases, supra, that issues determined in a suit against a Collector were not res judicata in a subsequent suit against the Commissioner. Congress had provided, in 1924, Revenue Act 1924, § 1014, 26 U.S.C.A. Int.Rev. Acts, page 128, that a suit against the Collector for recovery of taxes unlawfully collected might be brought, regardless of whether the tax had been paid under protest, and made that provision retroactive. In Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265, 1933, no protest had been filed, and the tax had been paid and the Collector had remitted the funds to the Treasury before the 1924 amendment was enacted; the collector, when sued, argued that the suit was personal and that the retroactive provision of that statute infringed his individual rights" }, { "docid": "23553082", "title": "", "text": "to. (2) Through an action at law brought against the United States. This is by virtue of the so-called Tucker Act (Judicial Code, § 24, par. 20, 24 Stat. 505, c. 359); it being held that a suit may be maintained directly against the United States for the recovery» of taxes wrongfully assessed and collected. Emery-Bird-Thayer Realty Co. v. United States (D. C.) 198 Fed. 242, 249; Christie Street Commission Co. v. United States, 136 Fed. 326, 69 C. C. A. 464. (3) Through an action against a collector who wrongfully exacted the tax, and who may be sued for such money as he is not entitled to retain. Smietanka v. Indiana Steel Co., 257 U. S. 1, 42 Sup. Ct. 1, 66 L. Ed. 99; Sage v. United States, 250 U. S. 33, 39 Sup. Ct. 415, 63 L. Ed. 828. In Elliott v. Swartwout, 10 Pet. 137, 9 L. Ed. 373, the court held that the collector was not liable in an action to recover the excess du ties mistakenly collected unless protest was made at the time of payment or notice was given to him not to pay the money over to the Treasury. The principle applied was the one applied to agents in private transactions — that a voluntary payment to an agent without notice of objection would not subject the agent to liability he having paid it over to his principal, but that payment with notice or with a protest might malee the agent liable if, notwithstanding the notice or protest, he paid the money over to his principal. But after an act of Congress required collectors to pay over such moneys it was held that the personal liability was gone. Cary v. Curtis, 3 How. 236, 11 L. Ed. 576. And later statutes, as pointed out in Smietanka v.- Indiana Steel Co., supra, recognize suits against collectors in such cases. In our opinion, section 252 of the act of 1918 was apparently designed to counteract the effect of section 3228 of the Revised Statutes, which limited refunds to a period of two years after" }, { "docid": "4510083", "title": "", "text": "money wrongfully and involuntarily paid under compulsion, although the Collector had paid the collected funds to the Treasury. Elliot v. Swartwout, 10 Pet. 137, 153, 155, 156, 9 L.Ed. 373, 1836; Story, J. in Cary v. Curtis, 3 How. 236, 254, 11 L.Ed. 576, 1845; Cf. Atchison, etc., R. Co. v. O’Connor, 223 U.S. 280, 287, 32 S.Ct. 216, 56 L.Ed. 436, Ann.Cas.1913C, 1050, 1912. The taxpayer’s protest was a warning not to pay to the Treasury the moneys collected. Later statutes made it the duty of the Collector to turn in the moneys to the government, regardless of the protest; there were decisions to the effect that such statutes barred suits against the collector; but subsequent decisions cleared up that doubt. Philadelphia v. The Collector, 5 Wall. 720, 731, 18 L.Ed. 614; Arnson v. Murphy, 109 U.S. 238, 241, 3 S.Ct. 184, 27 L.Ed. 920. Included in such legislation was a statute, enacted in 1863, 12 Stat. 741, § 12 , which provided that, when judgment is procured against “a collector or other officer of the revenue for * * * the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies” either (1) “that there was probable cause for the act done by the collector or other officer, or (2) that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.” In United States v. Sherman, 98 U.S. 565, 25 L.Ed. 235, 1878, (as interpreted in Moore Ice Cream Co. v. Rose, supra) it was held that the effect of the filing of such a certificate is to convert the suit into one against the United States. Nevertheless, in Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 416, 63 L.Ed. 828, 1919, it was held that, in a" }, { "docid": "18350908", "title": "", "text": "joining such issue. Such costs shall include only those actually incurred for witnesses and fees paid to the clerk.” Sec. 1346 deals with actions in the District Court against the United States for the recovery of internal revenue taxes alleged to have been erroneously or illegally assessed or collected. Sec. 1491 deals with actions against the United States in the Court of Claims. If the taxpayer is successful in an action against the United States to recover taxes erroneously or illegally assessed, under Sec. 2412(b) costs can be assessed against the United States to a very limited extent which would not exceed $5 in the present case. It is appellee’s contention that although Sec. 2412(b) specifically refers only to actions against the United States, it includes actions against the Collector as well as against the United States because for all practical purposes a suit against the Collector and recovery thereby of taxes illegally collected is a suit against the United States. See: Ewing v. Gardner, 341 U.S. 321, 71 S.Ct. 684, 95 L.Ed. 968. Rule 81(f) plays no part in this argument as it is limited to a construction of the Rules of Civil Procedure and has no application to the statute. The argument of the Collector is theoretically sound but has been consistently rejected by the Supreme Court. In Sage v. Unit ed States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828, the Court said that technically a judgment against a Collector is not a judgment against the United States, that such a suit is personal and its incidents, such as the nature of the defenses open and the allowance of interest, are different, and that at the time the judgment is entered, the United States is a stranger. In Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 66 L.Ed. 99, it was held that an action against a Collector is based upon his personal liability and cannot be maintained against his successor in office. In United States v. Kales, 314 U.S. 186, 62 S.Ct. 214, 220, 86 L.Ed. 132, the Court said, “The judgment" }, { "docid": "11938916", "title": "", "text": "case the judgment is granted for an amount of money all of which was illegally collected. This is in accord with appellee’s contention on the argument that the money collected herein was not an “overpayment” of a “tax”. The general rule is that “the United States is not liable'to [for] interest except where it assumes the liability by contract or by the express words of a statute, or must pay it as part of the just compensation required by the Constitution”. Accordingly, appellant argues that the certificate of probable cause contained in the judgment affirmed, converted the judgment into a judgment against the United States, and therefore no interest may be allowed. Appellee contends that in form the judgment is not one against the United States, but against a private individual, and therefore interest may be allowed the same as in any action against a private party. Interest may be included in a judgment against a collector from the time of collection by the collector to the date of judgment, except where “plaintiff has been guilty of laches in unreasonably delaying the prosecution of his claim”, a point not urged here. U.S.Code, Title 28, § 842, 28 U.S.C.A. § 842, provides: “When a recovery is had in any suit or proceeding against a collector * \" * * for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.” The effect of such statute is shown by the following quotation from Smietanka v. Indiana Steel Co., 257 U.S. 1, 4, 42 S.Ct. 1, 66 L.Ed. 99: “As the law stood before later statutes a" }, { "docid": "4510085", "title": "", "text": "suit against the United States for a tax refund, a judgment for part of the claim, entered in a prior suit against the Collector, raising the same issues, was not res judicata. The court said that, under the statute, “the judgment is to be paid * * * if a certificate is granted by the Court that there was probable cause for his [the Collector’s] act”. But it said that a suit against a Collector “is personal [in] its incidents”, and that \"at the time the judgment is entered the United States is a stranger”, because, only if the court, after the entry of judgment, finds that there was probable cause, will the certificate be issued. This thesis was explained in Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 2, 66 L.Ed. 99, 1921; there the tax had been collected by Collector Fitch, but suit for recovery was brought against his successor, Smietanka; the court held that the suit must be dismissed, because not authorized by statute; in that connection the court said: “To show that the action still is personal, as laid down in Sage v. United States, 250 U.S. 33, 37, 39 S.Ct. 415, 63 L.Ed. 828, it would seem to be enough to observe that when the suit is begun it cannot be known with certainty that the judgment will be paid out of the Treasury. That depends upon the certificate of the Court in the case. It is not to be supposed that a stranger to an unwarranted transaction is made answerable for it; yet that might be the result of the suit if it could be brought against a successor to the collectorship. A personal execution is denied only when the certificate is given.” In Graham & Foster v. Goodcell, 282 U.S. 409, 430, 51 S.Ct. 186, 194, 75 L.Ed. 415, 1931, the court, in passing, rejected an argument that the United States, without substituting another remedy, could enact a valid statute depriving citizens of the right to recover from a Collector monies unlawfully collected by him, saying: “Such an action is" }, { "docid": "11977694", "title": "", "text": "remedy given, which was exclusive.” Expressions in Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 66 L.Ed. 99; Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828; Graham & Foster v. Goodcell, 282 U.S. 409, 51 S.Ct. 186, 75 L.Ed. 415; White v. Hopkins (C.C.A.) 51 E.(2d) 159; Tait v. Western Md. R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405, relied on by appellants as declaring the law to be of a different purport, do not do so. They must be read as applied to the situations specifically dealt with under those decisions and the matters decided in them. They did not purport to deal with the question at issue here, whether the action against the collector for collections made officially would lie at common law independent of the congressional consent evidenced by statute. They may not be distorted into an overruling of the long line of cases beginning with Elliott v. Swartwout, which discuss and point the difference between a common-law action against the collector for his wrongful conduct and the statutory action allowed against him, and through him against the United States, for doing what the law commands, or appears to command, him,to do. Cf. De Lima v. Bidwell, 182 U.S. 1, at page 177, 21 S.Ct. 743, 45 L.Ed. 1041. It is perfectly plain that appellants have not pleaded, we think they cannot plead, a common-law, indeed without the aid of Congress any, action, against appellee. For, as shown at length in the Swartwout and Curtis Cases, appellee has done them no actionable wrong. A collector of internal revenue, obligated by statute to collect taxes and pay them daily over to the Treasury, he has done no wrong in doing so, for which an action, equitable in its nature, like that for moneys had and received, will lie against him. The statute is his master, it is likewise his protection and shield. It directs him to collect and pay over; it protects him when he does so. The law, in the absence of a statute giving one," }, { "docid": "22334798", "title": "", "text": "Treasury or other proper officers of the Government. 12 Stat. 741, § 12. In that event, no execution was to issue against him, but the amount of recovery was to be paid out of the Treasury. These provisions, carried into Revised Statutes § 989, are continued as 28 U. S. C. § 842. By § 1014 of the Revenue Act of 1924, 43 Stat. 253, 343, amending Revised Statutes § 3226, the requirement for protest of the payment was abolished. While the effect of the certificate in indemnifying the collector has been said to convert the suit against him into a suit against the Government, at least so far as the ultimate incidence of the liability is concerned, United States v. Sherman, 98 U. S. 565, 567; Moore Ice Cream Co. v. Rose, supra, 289 U. S. at p. 381, the statutory provisions have not altered the nature and extent of the claims which the taxpayer is authorized to prosecute in suits against the collector. Originally it was the payment of the illegally exacted tax which gave rise to the cause of action. It was the payment which designated the person against whom the suit might be brought and which measured the right of recovery. Payments made to one collector could not be recovered from another, and, since the causes of action against the two collectors were different, recovery upon one could not bar recovery upon the other. After the enactment of legislation requiring collectors of customs to pay over to the Government duties collected under protest, 5 Stat. 348; R. S. § 3010, doubts arose whether suit could, in such circumstances, be maintained against them, since it was thought that the statutory command had relieved the collectors from personal liability. See Cary v. Curtis, 3 How. 235. But those doubts were put at rest by later acts of Congress establishing the continued right of the taxpayer to maintain a suit against such a collector notwithstanding payment over of his collections to the Treasury. 5 Stat. 727; R. S. § 3011; Curtis’s Administratrix v. Fiedler, 2 Black 461, 479; Arnson" }, { "docid": "22334797", "title": "", "text": "exacted taxes gave rise to a common law cause of action against the collector for restitution of the overpayment. Elliott v. Swartwout, 10 Pet. 137, 153, 156; Moore Ice Cream Co. v. Rose, supra, 375, and cases cited. By the protest the collector was informed of the contention of the taxpayer and was thus precluded from relieving himself, by payment into the Treasury of the moneys collected, from liability to make restitution. Elliott v. Swartwout, supra; Smietanka v. Indiana Steel Co., 257 U. S. 1, 4. By a series of Congressional acts it was made the duty of the collector to pay to the Government the moneys collected, regardless of a protest. 12 Stat. 442; 13 Stat. 483; R. S. § 3210; 26 U. S. C. § 1761. But with imposition of this duty on the collector to pay over, the Government undertook to indemnify him upon certification by the court, either that there was probable cause for the act done by the collector, or that he acted under directions of the Secretary of the Treasury or other proper officers of the Government. 12 Stat. 741, § 12. In that event, no execution was to issue against him, but the amount of recovery was to be paid out of the Treasury. These provisions, carried into Revised Statutes § 989, are continued as 28 U. S. C. § 842. By § 1014 of the Revenue Act of 1924, 43 Stat. 253, 343, amending Revised Statutes § 3226, the requirement for protest of the payment was abolished. While the effect of the certificate in indemnifying the collector has been said to convert the suit against him into a suit against the Government, at least so far as the ultimate incidence of the liability is concerned, United States v. Sherman, 98 U. S. 565, 567; Moore Ice Cream Co. v. Rose, supra, 289 U. S. at p. 381, the statutory provisions have not altered the nature and extent of the claims which the taxpayer is authorized to prosecute in suits against the collector. Originally it was the payment of the illegally exacted tax" }, { "docid": "6369818", "title": "", "text": "by the court overruled, and, the defendants declining to plead further, judgment was entered against both defendants for the entire amounts claimed in all three counts, with interest at 7 per cent, per annum and the costs of the suit. As to the second grounds of demurrer, the court was clearly in error. Each defendant acted separately, and if plaintiff is entitled to judgment it can only recover from the collector to whom it made the payments. Sage v. United States, 250 U. S. 33, 39 Sup. Ct. 415, 63 L. Ed. 828; Smietanka, Collector, v. Indiana Steel Co., 257 U. S. 1, 42 Sup. Ct. 1, 66 L. Ed. 99; Union Trust Co. v. Wardell, 258 U. S. 537, 42 Sup. Ct. 393, 66 L. Ed. 753. In Patton v. Brady, Executrix, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713, it was held that such an action against the collector survives his death, and his executor is the proper and only party to be substituted as the defendant, as the action is personal against the collector who received the tax. This is reaffirmed and the reasons therefor are fully set out in Smietanka v. Indiana Steel Co., supra, pp. 4 and 5 (42 Sup. Ct. 1). As to the first grounds of the demurrers, the law, unless changed by the acts of Congress relied on by counsel for plaintiff, Hereafter referred to, prevents a recovery in such an action, if the tax was paid voluntarily, without coercion and without protest. A leading authority on that point is Philadelphia v. Collector, 72 U. S. (5 Wall.) 720, 731, 732 (18 L. Ed. 614). It was there held: “Appropriate remedy to recover back money paid under protest on account of duties or taxes erroneously or illegally assessed, is an action of assumpsit for money had and received. Where the party voluntarily pays the money, he is without remedy; but if he pays it by compulsion of law, or, under protest, or with notice that be intends to bring suit to test the validity of the claim, be" }, { "docid": "22059781", "title": "", "text": "pay.into the Treasury the moneys collected. Elliott v. Swartwout, supra; Smietanka v. Indiana Steel Co., 257 U.S. 1, 4. Statutes first enacted in 1839 (Act of March 3, 1839, c. 82, § 2, 5 Stat. 348) and progressively broadened (R.S., § 3210; 26 U.S.C., § 140), made it the duty of Collectors to pay the money over to the Govern-' ment, whether there had been protest or ho protest. At first this was thought to have relieved them of personal liability (Cary v. Curtis, 3 How. 236; Smietanka v. Indiana Steel Co., supra), but later acts of .Congress established a different rule, though maintaining the duty to make remittance to the Treasury. Philadelphia v. Collector, 5 Wall. 720, 731; Curtis’s Adm’x v. Fiedler, 2 Black 461, 479; Collector v. Hubbard, supra; Arnson v. Murphy, 109 U.S. 238, 241; 5 Stat. 727; 12 Stat. 434, 725, 729; 12 Stat. 741, § 12; 13 Stat. 239; 14 Stat. 329, § 8. Along with the duty there went a pledge of indemnity by the Government itself, a pledge not absolute, it is true, but subject to a condition. 12 Stat. 741, § 12; United Stated v. Sherman, 98 U.S. 565; Philadelphia v. Collector, supra, p. 733; Smietanka v. Indiana Steel Co., supra. The condition was that a certificate be graritéd by the court either (a) that there was probable cause for the act done by the Collector or other officer, or (b) that he acted under, the directions of the Secretary of the Treasury or other proper officer of the Government. 12 Stat. 741, § 12; Act of March 3, 1863. In that event no execution was to issue upon the judgment, but the amount of the recovery was to be paid out of the Treasury. The pledge of indemnity was carried forward into the Revised Statutes with only verbal changes (R.S. 989), and stands upon the books today. 28 U.S.C., § 842. The effect of the certificate, when given, is to convert the suit against the Collector into a suit against the Government. United States v. Sherman, supra. This Collector did act" }, { "docid": "11095238", "title": "", "text": "the decision in the Sage case, the question was presented whether an action against a collector could be continued against his successor. This Court held that it could not, because the Sage case had settled that such a suit was “personal.” See Smietanka v. Indiana Steel Co., 257 U. S. 1; Union Trust Co. v. Wardell, 258 U. S. 537. In Bankers Coal Co. v. Burnet, 287 U. S. 308, a suit against a collector with respect to taxes for the years 1914-1919 had resulted in a determination that the taxpayer was entitled to a depletion allowance of five cents per ton on coal mine royalties. It was contended that this determination was res judicata of that issue in a subsequent action against the Commissioner relating to taxes for later years. The Court, again relying on the Sage case, rejected the argument in these words: “With respect to this contention it is sufficient to say that the suit in the District Court was not against the Commissioner of Internal Revenue, the respondent here, but against the Collector, judgment against whom is not res ad judicata against the Commissioner or the United States.” 287 U. S. at 311-312. The Government leans heavily upon Moore Ice Cream Co. v. Rose, 289 U. S. 373. In that case the constitutionality of § 1014 of the Revenue Act of 1924, 43 Stat. 253, 343, providing that a taxpayer may recover an unlawful federal tax even though he paid the tax without protest, was upheld as applied to a payment without protest made prior to the enactment of the provision. In reaching this conclusion, the Court noted that, under R. S. § 989, 28 U. S. C. § 842, a collector who acts under the directions of the Secretary of the Treasury, or other proper officer of the Government, “is entitled as of right to a certificate converting the suit against him into one against the Government ... A suit against a Collector who has collected a tax in the fulfillment of a ministerial duty is today an anomalous relic of bygone modes of thought." }, { "docid": "22059782", "title": "", "text": "not absolute, it is true, but subject to a condition. 12 Stat. 741, § 12; United Stated v. Sherman, 98 U.S. 565; Philadelphia v. Collector, supra, p. 733; Smietanka v. Indiana Steel Co., supra. The condition was that a certificate be graritéd by the court either (a) that there was probable cause for the act done by the Collector or other officer, or (b) that he acted under, the directions of the Secretary of the Treasury or other proper officer of the Government. 12 Stat. 741, § 12; Act of March 3, 1863. In that event no execution was to issue upon the judgment, but the amount of the recovery was to be paid out of the Treasury. The pledge of indemnity was carried forward into the Revised Statutes with only verbal changes (R.S. 989), and stands upon the books today. 28 U.S.C., § 842. The effect of the certificate, when given, is to convert the suit against the Collector into a suit against the Government. United States v. Sherman, supra. This Collector did act under the directions of the Secretary of the Treasury, or other proper officer of the Government in the collection of the tax. The complaint shows upon its.face that the tax had been duly assessed by the Commissioner of Internal Revenue. ■ In that situation the Collector was under a ministerial duty to proceed to collect it. R.S. § 3182; 26 U.S.C., § 102; Erskine v. Hohnbach, 14 Wall. 613. There was nothing left to his discretion. ' Other duties less definitely prescribed may leave a margin for judgment and for individual initiative. Cf. Agnew v. Haymes, 141 Fed. 631. There was no such margin here. His duty being imperative, he is protected by the command of his superior from liability for trespass (Erskine v. Hohnbach, supra; Haffin v. Mason, 15 Wall. 671, 675; Harding v. Woodcock, 137 U.S. 43, 46), and is entitled as of right to a certificate converting the suit against him into one against the Government. United States v. Sherman, supra. His position could be no better if there had been protest" }, { "docid": "4510087", "title": "", "text": "personal and not against the United States”, citing the Sage and Smietanka cases. In Bankers Pocahontas Coal Co. v. Burnet, 287 U.S. 308, 53 S.Ct. 150, 77 L.Ed. 325, 1932, it was held, on the authority of the Sage and Smietanka cases, supra, that issues determined in a suit against a Collector were not res judicata in a subsequent suit against the Commissioner. Congress had provided, in 1924, Revenue Act 1924, § 1014, 26 U.S.C.A. Int.Rev. Acts, page 128, that a suit against the Collector for recovery of taxes unlawfully collected might be brought, regardless of whether the tax had been paid under protest, and made that provision retroactive. In Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265, 1933, no protest had been filed, and the tax had been paid and the Collector had remitted the funds to the Treasury before the 1924 amendment was enacted; the collector, when sued, argued that the suit was personal and that the retroactive provision of that statute infringed his individual rights under the 5th Amendment. Mr. Justice Cardozo, speaking for the Court, rejected that argument, saying (289 U.S. at page 382, 383, 53 S.Ct. at page 623, 77 L.Ed. 1265): “A suit against a collector who has collected a tax in the fulfillment of a ministerial duty is to-day an anomalous relic of bygone modes of thought. He is not suable as a trespasser, nor is he to pay out of his own purse. He is made a defendant because the statute has said for many years that such a remedy shall exist, though he has been guilty of no wrong, and though another is to pay. * * * There may have been utility in such procedural devices in days when the government was not suable as freely as now. * * * They have little utility today, at all events where the complaint against the officer shows upon its face that in the process of collecting he was acting in the line of duty, and that in the line of duty he has turned" } ]

[ { "docid": "12647182", "title": "", "text": "if he had a gun, an arguably proper line of questioning to protect the officers’ safety. See New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Despite this initial questioning, we agree with the Illinois Appellate Court that Andersen’s statement a few minutes later was initially volunteered. This lapse of time and the nonresponsive character of Andersen’s statement removes any possibility that Andersen was responding to police interrogation about a gun when he stated, “I stabbed her.” By its own terms, Miranda does not apply to volunteered statements, and thus Andersen’s first exclamation could be properly received into evidence. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). Furthermore, the police officer’s responsive question, “Who?,” did not require full Miranda warnings before its utterance. See, e.g., United States v. Rhodes, 779 F.2d 1019, 1032 (4th Cir.1985) (no interrogation occurred where drug dealer saw police officers were confiscating his notebook and said, “You can’t take that,” to which a police officer responded, “Why” and drug dealer stated, “I can’t run my business without that.”), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986); Papile v. Hernandez, 697 F.Supp. 626, 630-31 (E.D.N.Y.1988) (no interrogation occurred where police officer asked, “What kind of a deal?” in response to habeas petitioner’s spontaneous offer, “I want to make a deal.”); Turner v. Sullivan, 661 F.Supp. 535, 538 (E.D.N.Y.1987) (no interrogation occurred where habeas petitioner had initiated exchange by stating, “My leg is hurting,” to which police officer responded, “What happened to you?”), aff'd, 842 F.2d 1288 (2d Cir.), cert. denied, 487 U.S. 1240, 108 S.Ct. 2913, 101 L.Ed.2d 944 (1988); 1 W. LaFave & J. Israel, Criminal Procedure § 6.7(d) (1984). The police officer’s question was a neutral response, intended to clarify Andersen’s puzzling declaration; it was not coercive interrogation that Miranda seeks to prevent. Therefore, the police officer’s question and Andersen’s response could have been properly admitted. On the facts of this case, the spontaneous colloquy, which was initiated by the accused, did not require full Miranda warnings before" } ]

[ { "docid": "13789889", "title": "", "text": "Mr. Chipps. Interrogation is not limited to express questioning; it includes words or conduct that the officer should know are “reasonably likely to illicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnote omitted). Miranda does not bar the government from introducing into evidence spontaneous statements made during a conversation not initiated by the officer. United States v. Hawkins, 102 F.3d 973, 975 (8th Cir.1996), cert. denied, 520 U.S. 1179, 117 S.Ct. 1456, 137 L.Ed.2d 560 (1997). An officer’s request for clarification of a spontaneous statement generally does not constitute interrogation. See Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.1989), cert. denied, 496 U.S. 909, 110 S.Ct. 2595, 110 L.Ed.2d 276 (1990); see also United States v. Koontz, 143 F.3d 408, 411 (1998). Mr. Chipps asserts that he was interrogated by Agent Elton. He insists' that Agent Elton should have known that if he mentioned the pursuit then Mr. Chipps would discuss his involvement in it and thereby incriminate himself. Mr. Chipps’s statements to Agent Elton were properly admitted under Miranda. The agent’s mention of his own involvement in the pursuit did not constitute interrogation because it was not likely to elicit incriminating evidence; it was a statement of fact not a plea to the conscience, and it was not accompanied by any threats or other coercive pressure. Cf. United States v. Briggs, 273 F.3d 737, 740-41 (7th Cir.2001). Mr. Chipps’s response to this statement, therefore, was admissible. Mr. Chipps’s acknowledgment that he knew that Agent Cresalia had been looking for him was admissible as a spontaneous statement made during a conversation not initiated by the officer: It followed a one-minute lapse during which there was no talking, and it was not made in response to a question - posed by Agent Elton. See Andersen v. Thieret, 903 F.2d 526, 531-32 (7th Cir.1990); Hawkins, 102 F.3d at 975. Mr. Chipps’s comment that he had been told about the warrant was also admissible as a spontaneous statement. Finally, his response to Agent Elton’s question about how long" }, { "docid": "13789881", "title": "", "text": "could follow the blood and seize the sweatshirt. Agent Chiefs search and seizure did not violate the fourth amendment. Even if we assume that the trail of blood was within the houses’s curtilage, to which the warrant rule applies, United States v. Gerard, 362 F.3d 484, 487 (8th Cir.2004), cert. denied, — U.S. —, 125 S.Ct. 311, 160. L.Ed.2d 228 (2004), the exigent-circumstances exception justified Agent Chiefs decision to follow the trail: Agent Chief could have reasonably believed that the trail of blood indicated that someone’s life was in immediate danger, especially as he had been told that a person had been assaulted at Mr. Chipps’s residence. Cf. Leveringston, 397 F.3d at 1117-18; United States v. Janis, 387 F.3d 682, 687-88 (8th Cir.2004); Collins, 321 F.3d at 694-95. The plain-view doctrine, moreover, justified Agent Chiefs seizure of the sweatshirt. Agent Chief, as explained above, legally arrived at the place from which he could see the sweatshirt, the incriminating nature of a bloody sweatshirt at the site of a potential assault was obvious, and he had a legal right to access the shirt — it was right in front of him on the ground, see generally Boone v. Spurgess, 385 F.3d 923; 928 (6th Cir.2004). See Mincey, 437 U.S. at 393, 98 S.Ct. 2408. II. Mr. Chipps also argues that a search warrant obtained by law enforcement was not supported by probable cause and, in the alternative, that it was supported by probable cause only because the district court considered a false statement included in the warrant affidavit. He asks us to exclude the evidence seized pursuant to the warrant if we find that there was no probable cause, or, in the alternative, to order an evidentiary hearing in accord with Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), if we find that probable cause existed only if we consider the false statement. Several days after the assault on Mr. Pourier, law enforcement officials obtained a warrant authorizing them to search Mr. Chipps’s house. The warrant was based on a Federal Bureau of Investigation agent’s affidavit." }, { "docid": "13789905", "title": "", "text": "112 S.Ct. 243, 116 L.Ed.2d 198 (1991). To determine whether flight evidence is sufficiently probative of guilt to be admissible, we look to whether the evidence supports the follow ing four inferences: that the defendant fled; that the flight evinced consciousness of guilt; that the guilt related to the crime charged in this case; and that the consciousness of guilt flowed from actual guilt of the crime charged. Id. The district court properly admitted the flight evidence. That Mr. Chipps did not turn himself in, could not be found for two years, and sped away from the police supported the inference that he fled. The fact that Mr. Chipps fled within days of being given a copy of the warrant for his arrest for the assault on Mr. Pourier supported the inferences that he fled because of consciousness guilt and that the guilt stemmed from the assault on Mr. Pourier. See Hankins, 931 F.2d at 1262. Lastly, there was sufficient evidence in the form of the trail of blood and bloody sweatshirt found on Mr. Chipps’s property, in addition to the statements of Mr. Red Elk and Mr. Pourier, to support the inference that Mr. Chipps’s consciousness of guilt about the assault derived from actually having assaulted Mr. Pourier. Cf. United States v. Oliver, 397 F.3d 369, 376 (6th Cir.2005) VII. We next determine whether the district court erred by allowing the government to cross-examine Mr. Chipps about an affair that he had had with Sheila Lamont, a woman with whom Mr. Pourier was having a relationship at the time of the assault. On direct examination, Mr. Chipps was asked whether he had had a motive to assault Mr. Pourier. He stated that he had not had one. On cross-examination, Mr. Chipps admitted that he had had sex with Ms. Lamont. The government’s cross-examination was not improper. Federal Rule of Evidence 611(b) provides that the scope of cross-examination “should be limited to the subject matter of the direct examination.” The government’s questions about the affair with Ms. Lamont relate to whether Mr. Chipps was motivated to assault Mr. Pourier because" }, { "docid": "13789884", "title": "", "text": "in reckless disregard for its truth. See id. at 156, 98 S.Ct. 2674; see also United States v. Leisure, 844 F.2d 1347, 1357 (8th Cir.1988), cert. denied, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 342 & 488 U.S. 960, 109 S.Ct. 324, 102 L.Ed.2d 342 (1988).) Even if an affidavit for a search warrant contains improper material, the warrant is valid so long as the remaining content of the affidavit suffices to provide probable cause. See United States v. Smith, 266 F.3d 902, 905 (8th Cir.2001). Mr. Chipps points to five difficulties with the affidavit aside from the inclusion of the allegedly false statement. We will not re hearse them; suffice it to say that Mr. Chipps contends that the affiant relied on unreliable sources and came to unjustifiable conclusions based on the available evidence. As for the false statement, Mr. Chipps asserts that the declaration in the affidavit that Mr. Red Elk said that Mr. Chipps hit Mr. Pourier with “his fists” is false. As proof, he points to the transcript of the FBI’s interview of Mr. Red Elk, which was attached to the affidavit. During this interview, an FBI agent asked Mr. Red Elk, “Do you, he was just beatin’ him with his hands?” Mr. Red Elk responded, “Yeah, just his hands.” Mr. Chipps focuses on the fact that Mr. Red Elk did not use the word “fists” and argues that the affidavit contains a false statement since it avers that Mr. Red Elk said that Mr. Chipps used his fists. We conclude that the warrant was valid. The following information contained in the warrant affidavit, and unchallenged by Mr. Chipps, established probable cause. First, Julia Chipps found Mr. Pourier lying on the ground near Mr. Chipps’s house, unconscious, shirtless, and with blood on his face. Second, the same day that Ms. Chipps found Mr. Pourier, Agent Chief discovered the trail of blood and the bloodstained sweatshirt on Mr. Chipps’s property. Third, an FBI agent who examined Mr. Pourier at the hospital saw and photographed what appeared to be boot-mark impressions on Mr. Pourier’s body. Since there" }, { "docid": "13789890", "title": "", "text": "Chipps’s statements to Agent Elton were properly admitted under Miranda. The agent’s mention of his own involvement in the pursuit did not constitute interrogation because it was not likely to elicit incriminating evidence; it was a statement of fact not a plea to the conscience, and it was not accompanied by any threats or other coercive pressure. Cf. United States v. Briggs, 273 F.3d 737, 740-41 (7th Cir.2001). Mr. Chipps’s response to this statement, therefore, was admissible. Mr. Chipps’s acknowledgment that he knew that Agent Cresalia had been looking for him was admissible as a spontaneous statement made during a conversation not initiated by the officer: It followed a one-minute lapse during which there was no talking, and it was not made in response to a question - posed by Agent Elton. See Andersen v. Thieret, 903 F.2d 526, 531-32 (7th Cir.1990); Hawkins, 102 F.3d at 975. Mr. Chipps’s comment that he had been told about the warrant was also admissible as a spontaneous statement. Finally, his response to Agent Elton’s question about how long he had known about the warrant was properly admitted. A request for clarification of a spontaneous statement generally does not constitute interrogation. See Butzin, 886 F.2d at 1018; see also Koontz, 143 F.3d at 411. A question would constitute interrogation if it attempted to “enhance [Mr. Chipps’s] guilt,” Butzin, 886 F.2d at 1018, but we do not think that Agent Elton’s inquiry into how long Mr. Chipps had known about the warrant was such an attempt. Mr. Chipps’s statement indicated that he had known about the warrant for some time, and Agent Elton simply asked about the exact length of time. IV. Mr. Chipps contends that the search warrant for his house was invalid because the judge did not have authority to issue it. South Dakota Circuit Judge John E. Fitzgerald issued the federal warrant pursuant to Federal Rule of Criminal Procedure 41(b)(1). That rule provides that, at the request of a federal law enforcement officer or government attorney, “a magistrate judge with authority in the district — or if none is reasonably available, a" }, { "docid": "13789880", "title": "", "text": "exception to the warrant requirement. Pursuant to the plain-view doctrine, a law enforcement officer may seize an object without a warrant if the officer did not violate the fourth amendment in reaching the place from which the object could be plainly viewed, “the object’s incriminating character is immediately apparent, and the officer has a lawful right of access to the object itself.” Collins, 321 F.3d at 694 (internal quotations omitted). Mr. Chipps maintains that the police violated the fourth amendment when they followed the trail of blood and seized the sweatshirt. He admits that their presence at his front door was legally unobjectionable and that the first drop of blood was plainly visible from the area immediately in front of the door to his house. Agent Chiefs fourth amendment violations began, Mr. Chipps asserts, when he followed the trail of blood. Mr. Chipps insists that the trail was contained within his house’s curtilage, which deserves the same constitutional protection as the house itself. Thus, he contends, Agent Chief needed to obtain a warrant before he could follow the blood and seize the sweatshirt. Agent Chiefs search and seizure did not violate the fourth amendment. Even if we assume that the trail of blood was within the houses’s curtilage, to which the warrant rule applies, United States v. Gerard, 362 F.3d 484, 487 (8th Cir.2004), cert. denied, — U.S. —, 125 S.Ct. 311, 160. L.Ed.2d 228 (2004), the exigent-circumstances exception justified Agent Chiefs decision to follow the trail: Agent Chief could have reasonably believed that the trail of blood indicated that someone’s life was in immediate danger, especially as he had been told that a person had been assaulted at Mr. Chipps’s residence. Cf. Leveringston, 397 F.3d at 1117-18; United States v. Janis, 387 F.3d 682, 687-88 (8th Cir.2004); Collins, 321 F.3d at 694-95. The plain-view doctrine, moreover, justified Agent Chiefs seizure of the sweatshirt. Agent Chief, as explained above, legally arrived at the place from which he could see the sweatshirt, the incriminating nature of a bloody sweatshirt at the site of a potential assault was obvious, and he had" }, { "docid": "7877358", "title": "", "text": "asserts, therefore, that his interviews with the agent amounted to “interrogation” for Miranda purposes. We disagree. In Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d 694 (1966), the Supreme Court stated that “interrogation” means “questioning initiated by law enforcement officers.” The Court later expanded that definition to include “either express questioning or ... any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incrimina-' ting response from the [defendant].” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). In a case in which we specifically considered the application of Innis, we held that, for Miranda purposes, statements made in response to a law enforcement officer’s “attempt to seek clarification” of a defendant’s remarks, during an interview requested by the defendant, are not the “products of interrogation.” Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.1989), cert. denied, 496 U.S. 909, 110 S.Ct. 2595, 110 L.Ed.2d 276 (1990); see also United States v. Hawkins, 102 F.3d 973, 975 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1456, 137 L.Ed.2d 560 (1997), and Stumes v. Solem, 752 F.2d 317, 322-23 (8th Cir.1985), cert. denied, 471 U.S. 1067, 105 S.Ct. 2145, 85 L.Ed.2d 502 (1985). Mr. Koontz himself acknowledged at the hearing on his motion to suppress that he sent a message asking to talk with a federal drug agent; that the interviews in question occurred subsequent to, and presumably because of, that message; and that “any time you meet with someone, ... they’re going to ask questions. That was the point.” In addition, Mr. Koontz testified at the hearing that he “volunteer[ed]” to the agent that “I could probably get him something” and that the agent’s subsequent questions were in response to that remark. It is clear to us from the agent’s testimony at the hearing, moreover, that his questions about quantity were also intended to discover sufficient information to convince the federal prosecutor that “it [was] worth our while” to accept Mr. Koontz’s offer to cooperate with the" }, { "docid": "13789883", "title": "", "text": "The affidavit states, in part, “according to [Waylon] Red Elk, Godfrey Chipps, Sr. hit Pourier in the face with his fists.” It also includes other pieces of information related to the assault on Mr. Pourier. As a result of this warrant, law enforcement officials obtained evidence inculpating Mr. Chipps in the assault. A search warrant is proper (ie., is supported by probable cause) if “the evidence as a whole creates a reasonable probability that the search will lead to the discovery of evidence.” United States v. Humphrey, 140 F.3d 762, 764 (8th Cir.1998). A defendant is entitled to an evi-dentiary hearing pursuant to Franks, 438 U.S. at 155-56, 98 S.Ct. 2674, if he “makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” (At this hearing, a court decides whether the probable-cause determination was based on information that was intentionally false or given in reckless disregard for its truth. See id. at 156, 98 S.Ct. 2674; see also United States v. Leisure, 844 F.2d 1347, 1357 (8th Cir.1988), cert. denied, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 342 & 488 U.S. 960, 109 S.Ct. 324, 102 L.Ed.2d 342 (1988).) Even if an affidavit for a search warrant contains improper material, the warrant is valid so long as the remaining content of the affidavit suffices to provide probable cause. See United States v. Smith, 266 F.3d 902, 905 (8th Cir.2001). Mr. Chipps points to five difficulties with the affidavit aside from the inclusion of the allegedly false statement. We will not re hearse them; suffice it to say that Mr. Chipps contends that the affiant relied on unreliable sources and came to unjustifiable conclusions based on the available evidence. As for the false statement, Mr. Chipps asserts that the declaration in the affidavit that Mr. Red Elk said that Mr. Chipps hit Mr. Pourier with “his fists” is false. As proof, he points to the transcript of the" }, { "docid": "13789885", "title": "", "text": "FBI’s interview of Mr. Red Elk, which was attached to the affidavit. During this interview, an FBI agent asked Mr. Red Elk, “Do you, he was just beatin’ him with his hands?” Mr. Red Elk responded, “Yeah, just his hands.” Mr. Chipps focuses on the fact that Mr. Red Elk did not use the word “fists” and argues that the affidavit contains a false statement since it avers that Mr. Red Elk said that Mr. Chipps used his fists. We conclude that the warrant was valid. The following information contained in the warrant affidavit, and unchallenged by Mr. Chipps, established probable cause. First, Julia Chipps found Mr. Pourier lying on the ground near Mr. Chipps’s house, unconscious, shirtless, and with blood on his face. Second, the same day that Ms. Chipps found Mr. Pourier, Agent Chief discovered the trail of blood and the bloodstained sweatshirt on Mr. Chipps’s property. Third, an FBI agent who examined Mr. Pourier at the hospital saw and photographed what appeared to be boot-mark impressions on Mr. Pourier’s body. Since there was probable cause to support the warrant without the supposedly false statement, we need not decide whether it is false. See Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. That said, we doubt that the statement in the warrant affidavit is anything more than a reasonable rephrasing of Mr. Red Elk’s statement to the FBI. III. Mr. Chipps next argues that the district court should have suppressed two sets of statements that he made to law enforcement officers because the officers had not apprised him of his Miranda rights before either set of statements. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Mr. Chipps made the first group of statements while law enforcement officials were executing a search warrant at his house. His argument with regard to these statements is untenable. Our review of the record indicates that no evidence of these statements was ever introduced at trial. Thus, the district court’s decision not to suppress the statements did not harm Mr. Chipps. We, therefore, turn to the second" }, { "docid": "7877357", "title": "", "text": "that a defendant “has been taken into custody or otherwise deprived of his freedom of action in any significant way” (emphasis supplied). Id. at 444, 86 S.Ct. at 1612. See also Berkemer v. McCarty, 468 U.S. 420, 434, 104 S.Ct. 3138, 3147, 82 L.Ed.2d 317 (1984); Miranda, 384 U.S. at 445, 471, 477-78, 86 S.Ct. at 1612-13, 1626-27, 1629-30; United States v. McKinney, 88 F.3d 551, 554 (8th Cir.1996); and United States v. Caldwell, 954 F.2d 496, 499 (8th Cir.1992), cert. denied, 506 U.S. 819, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992). We turn, then, to the issue of whether Mr. Koontz’s interviews with the federal drug agent amounted to “interrogation.” Mr. Koontz contends that he merely “wanted to discuss making [drug] buys and cooperating with the government” and that he did not anticipate, nor for those purposes was it necessary for him to be subjected to, “incriminating questions” “about all of his past drug involvement,” including the “quantities of drugs he was allegedly involved with” with respect to the charges pending against him. He asserts, therefore, that his interviews with the agent amounted to “interrogation” for Miranda purposes. We disagree. In Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d 694 (1966), the Supreme Court stated that “interrogation” means “questioning initiated by law enforcement officers.” The Court later expanded that definition to include “either express questioning or ... any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incrimina-' ting response from the [defendant].” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). In a case in which we specifically considered the application of Innis, we held that, for Miranda purposes, statements made in response to a law enforcement officer’s “attempt to seek clarification” of a defendant’s remarks, during an interview requested by the defendant, are not the “products of interrogation.” Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.1989), cert. denied, 496 U.S. 909, 110 S.Ct. 2595, 110 L.Ed.2d 276 (1990); see also United States v. Hawkins," }, { "docid": "21739365", "title": "", "text": "his chair, and the officers asked Jackson if he took any prescription medications or had any allergies and asked him to rate his well-being on a scale of one to ten. Agent Coulter testified the questions were motivated by a concern for Jackson’s physical and mental health. Jackson argues that his responses should be excluded as the product of interrogation. Given the very limited nature of the questions asked by the officers regarding Jackson’s health, we conclude that they were not “reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301, 100 S.Ct. 1682. The question regarding medications and allergies required only a yes or no response, and the rating of well-being required only a numerical response. From Jackson’s perspective, these questions would not reasonably be viewed as seeking incriminating evidence. Moreover, because Jackson voluntarily disclosed that he had been awake for several days and using drugs, the agents’ follow-up questions regarding his health do not constitute an interrogation. See Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir. 1989) (“An officer’s attempt to seek clarification of an ambiguous statement is not generally construed as interrogation for Miranda purposes if the question does not enhance the defendant’s guilt or raise the offense to a higher degree!.]” (internal quotation omitted)); see United States v. Jones, 842 F.3d 1077, 1083 (8th Cir. 2016) (holding that officer who asked defendant what he meant after he said “You finally fucking got me” was admissible because “[a]n officer’s request for clarification of a spontaneous statement does generally not amount to interrogation” (alteration in original) (internal quotation omitted)). Jackson argues that because the officers knew his federal warrant was in part for methamphetamine use, he had not slept, and he had recently been high on meth, they were aware of his “unusual susceptibility” to questioning, particularly about medications and mental health. Innis, 446 U.S. at 302 n.8, 100 S.Ct. 1682 (“Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should" }, { "docid": "21739364", "title": "", "text": "and “don’t remember;” whereas Jackson testified that these statements were made in response to specific police questions. The district court adopted Agent Coulter’s version of the events, concluding that Jackson “voluntarily stated” this information. “Volunteered statements of any kind” are not the product of police interrogation and thus “are not barred by the Fifth Amendment.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see United States v. Lockett, 393 F.3d 834, 837 (8th Cir. 2005) (holding that statements that “were not made in response to police questioning” “were voluntarily made, and their admission was not in violation of Miranda”). We cannot find that the district court clearly erred in crediting Agent Coulter’s testimony over Jackson’s. See United States v. Tail, 459 F.3d 854, 857-58 (8th Cir. 2006) (finding no clear error in the district court’s adoption of the agent’s account of his conversation with the defendant). 2. Physical and Mental Health Following Jackson’s voluntary statements about drug use and sleep deprivation, he curled up into the fetal position in his chair, and the officers asked Jackson if he took any prescription medications or had any allergies and asked him to rate his well-being on a scale of one to ten. Agent Coulter testified the questions were motivated by a concern for Jackson’s physical and mental health. Jackson argues that his responses should be excluded as the product of interrogation. Given the very limited nature of the questions asked by the officers regarding Jackson’s health, we conclude that they were not “reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301, 100 S.Ct. 1682. The question regarding medications and allergies required only a yes or no response, and the rating of well-being required only a numerical response. From Jackson’s perspective, these questions would not reasonably be viewed as seeking incriminating evidence. Moreover, because Jackson voluntarily disclosed that he had been awake for several days and using drugs, the agents’ follow-up questions regarding his health do not constitute an interrogation. See Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir. 1989)" }, { "docid": "13789906", "title": "", "text": "Chipps’s property, in addition to the statements of Mr. Red Elk and Mr. Pourier, to support the inference that Mr. Chipps’s consciousness of guilt about the assault derived from actually having assaulted Mr. Pourier. Cf. United States v. Oliver, 397 F.3d 369, 376 (6th Cir.2005) VII. We next determine whether the district court erred by allowing the government to cross-examine Mr. Chipps about an affair that he had had with Sheila Lamont, a woman with whom Mr. Pourier was having a relationship at the time of the assault. On direct examination, Mr. Chipps was asked whether he had had a motive to assault Mr. Pourier. He stated that he had not had one. On cross-examination, Mr. Chipps admitted that he had had sex with Ms. Lamont. The government’s cross-examination was not improper. Federal Rule of Evidence 611(b) provides that the scope of cross-examination “should be limited to the subject matter of the direct examination.” The government’s questions about the affair with Ms. Lamont relate to whether Mr. Chipps was motivated to assault Mr. Pourier because of jealousy over Mr. Pourier’s relationship with Ms. Lamont. The existence of a motive for a defendant to commit an assault is a relevant matter to put before the jury. Cf. United States v. Bogan, 267 F.3d 614, 621 (7th Cir.2001). Finally, given the deferential standard of review that we apply to a district court’s balancing under Rule 403, we cannot conclude that the court erred in determining that the probative value of the evidence outweighed the danger of unfair prejudice that it presented. See United States v. Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir.2002), cert. denied, 538 U.S. 968, 123 S.Ct. 1766, 155 L.Ed.2d 525 (2003). VIII. Finally, we conclude that Mr. Chipps is not entitled to relief based on the district court’s use of the mandatory guidelines regime to sentence him. Mr. Chipps did not raise the Booker issue (or any of its cognates) in the district court, so we review the matter for plain error. To demonstrate an entitlement to plain error relief, Mr. Chipps would have to show, based on the" }, { "docid": "13789891", "title": "", "text": "he had known about the warrant was properly admitted. A request for clarification of a spontaneous statement generally does not constitute interrogation. See Butzin, 886 F.2d at 1018; see also Koontz, 143 F.3d at 411. A question would constitute interrogation if it attempted to “enhance [Mr. Chipps’s] guilt,” Butzin, 886 F.2d at 1018, but we do not think that Agent Elton’s inquiry into how long Mr. Chipps had known about the warrant was such an attempt. Mr. Chipps’s statement indicated that he had known about the warrant for some time, and Agent Elton simply asked about the exact length of time. IV. Mr. Chipps contends that the search warrant for his house was invalid because the judge did not have authority to issue it. South Dakota Circuit Judge John E. Fitzgerald issued the federal warrant pursuant to Federal Rule of Criminal Procedure 41(b)(1). That rule provides that, at the request of a federal law enforcement officer or government attorney, “a magistrate judge with authority in the district — or if none is reasonably available, a judge of a state court of record in the district — has authority to issue a warrant to search for and seize a person or property located within the district.” Fed. R.Crim.P. 41(b)(1). Judge Fitzgerald, now deceased, was a judge of the Seventh Judicial Circuit of South Dakota; Mr. Chipps’s residence was in the Sixth Judicial Circuit of South Dakota. Judge Fitzgerald was not authorized to issue the warrant, Mr. Chipps insists, because Mr. Chipps’s house was not within the judge’s state judicial district. As Mr. Chipps reads it, the plain text of Rule 41(b)(1) limited Judge Fitzgerald to issuing warrants for searches and seizures in the Seventh Judicial Circuit of South Dakota. This textual argument makes sense, he continues, because “a federal rule cannot bestow on a state court judge more authority than the judge has under state law.” The warrant was valid. We generally presume that when a word is used twice in the same act it has the same meaning both times. See In re Complaint of Mike’s, Inc., 317 F.3d 894," }, { "docid": "13789904", "title": "", "text": "Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). We conclude that these instructions ensured that the jury’s verdict on the valid counts was not influenced by the multiplicitous counts. See United States v. Reedy, 304 F.3d 358, 368-69 (5th Cir.2002). Additionally, the evidence as to the valid counts was strong, so any effect that the multiplicitous counts could have had on the jury would have been negligible, and not sufficiently strong to warrant retrial. See United States v. Sue, 586 F.2d 70, 71-72 (8th Cir.1978) (per curiam). VI. Mr. Chipps contends that the district court erred by admitting evidence that he fled from law enforcement. Evidence of flight is admissible and has probative value as circumstantial evidence of consciousness of guilt. United States v. Melson, 7 F.3d 750, 752 (8th Cir.1993). We have indicated, however, that courts should be cautious in admitting evidence of flight because it is often only marginally probative of guilt. United States v. Hankins, 931 F.2d 1256, 1261 (8th Cir.1991), cert. denied, 502 U.S. 886, 112 S.Ct. 243, 116 L.Ed.2d 198 (1991). To determine whether flight evidence is sufficiently probative of guilt to be admissible, we look to whether the evidence supports the follow ing four inferences: that the defendant fled; that the flight evinced consciousness of guilt; that the guilt related to the crime charged in this case; and that the consciousness of guilt flowed from actual guilt of the crime charged. Id. The district court properly admitted the flight evidence. That Mr. Chipps did not turn himself in, could not be found for two years, and sped away from the police supported the inference that he fled. The fact that Mr. Chipps fled within days of being given a copy of the warrant for his arrest for the assault on Mr. Pourier supported the inferences that he fled because of consciousness guilt and that the guilt stemmed from the assault on Mr. Pourier. See Hankins, 931 F.2d at 1262. Lastly, there was sufficient evidence in the form of the trail of blood and bloody sweatshirt found on Mr." }, { "docid": "14917679", "title": "", "text": "King responded that police knew there were drugs at the scene and that Hawkins would make things easier by disclosing their location. Predictably, Hawkins repeated his denial, and King said no more. King and the other officers were there to search Hawkins’s home, not to interrogate him, and that is what they proceeded to do. King’s brief exchange with Hawkins, prompted by the latter’s exculpatory assertion, was not interrogation because this was not a situation in which King “should have known [that his words] were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 303, 100 S.Ct. 1682, 1691, 64 L.Ed.2d 297 (1980). Moreover, Hawkins made no incriminating statements until cocaine was found and he asked to speak with Detective King in private. “Miranda does not protect an accused fi-om a spontaneous admission made under circumstances not induced by the investigating officers or during a conversation not initiated by the officers.” Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.1989) (quotation omitted), cert. denied, 496 U.S. 909, 110 S.Ct. 2595, 110 L.Ed.2d 276 (1990). Hawkins argues that he was prompted to incriminate himself by King’s earlier “inherently coercive interrogation.” But that is a fanciful characterization of Hawkins’s initial exchange with Detective King. When the cocaine was found, Hawkins said to Detective King, “I got to help myself.” That statement confirms the obvious — it was the discovery of illegal drugs in his home, not police coercion, that inducéd the incriminating statements. Finally, Hawkins argues that because his initial incriminating statements were made to Detective King without Miranda warnings, statements he made at the stationhouse following Miranda warnings must be suppressed under Oregon v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 1297-98, 84 L.Ed.2d 222 (1985). Because there was no Miranda violation at Hawkins’s home, we need not undertake an Elstad analysis of the station-house questioning. However, we see no evidence that the stationhouse statements were involuntary. For the foregoing reasons, the district court properly denied Hawkins’s motion to suppress his incriminating statements. III. Hawkins next argues that the district court erred in denying his" }, { "docid": "13789888", "title": "", "text": "to Agent Elton that he knew that FBI agent Charles Cresalia had been looking for him. Agent Elton affirmed that Agent Cresalia had indeed been looking for Mr. Chipps for a long time. Mr. Chipps then mentioned that a tribal police officer had told him about a federal warrant and that he had told the police officer that he had commitments and ceremonies to perform before surrendering to law enforcement. When Agent Elton asked Mr. Chipps when he found out about the warrant, he replied that he had found out about it three years earlier. The government put evidence of this exchange before the jury. Miranda, 384 U.S. at 444, 86 S.Ct. 1602, prohibits the government from introducing into evidence statements made by -the defendant during a custodial interrogation unless the defendant has been previously advised of his fifth amendment privilege against self-incrimination and right to an attorney. The government does not dispute that Mr. Chipps was in custody or that he had not received Miranda warnings. The only question' is whether Agent Elton interrogated Mr. Chipps. Interrogation is not limited to express questioning; it includes words or conduct that the officer should know are “reasonably likely to illicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnote omitted). Miranda does not bar the government from introducing into evidence spontaneous statements made during a conversation not initiated by the officer. United States v. Hawkins, 102 F.3d 973, 975 (8th Cir.1996), cert. denied, 520 U.S. 1179, 117 S.Ct. 1456, 137 L.Ed.2d 560 (1997). An officer’s request for clarification of a spontaneous statement generally does not constitute interrogation. See Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.1989), cert. denied, 496 U.S. 909, 110 S.Ct. 2595, 110 L.Ed.2d 276 (1990); see also United States v. Koontz, 143 F.3d 408, 411 (1998). Mr. Chipps asserts that he was interrogated by Agent Elton. He insists' that Agent Elton should have known that if he mentioned the pursuit then Mr. Chipps would discuss his involvement in it and thereby incriminate himself. Mr." }, { "docid": "13789887", "title": "", "text": "set of statements. The district court did not explicitly find the following facts. We think, though, that the district court’s holding that Mr. Chipps’s statements were voluntary and spontaneous includes an implicit finding of the following facts, particularly the fact that there was about one minute of silence between the first part of the conversation and the second. Cf. Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d 361, 368 (8th Cir.1988). Also, Mr. Chipps does not challenge these facts. FBI agent Michael Elton fingerprinted Mr. Chipps the day after Mr. Chipps’s arrest. Agent Elton told Mr. Chipps that he had been one of the law enforcement officers who had tried to stop Mr. Chipps on Interstate 90 on the previous day. Mr. Chipps responded that he would have pulled over (and not led the officers on a high-speed pursuit) had they identified themselves — the first group of officers who tried to stop Mr. Chipps on the day of the arrest were driving unmarked cars. After about a minute of silence, Mr. Chipps said to Agent Elton that he knew that FBI agent Charles Cresalia had been looking for him. Agent Elton affirmed that Agent Cresalia had indeed been looking for Mr. Chipps for a long time. Mr. Chipps then mentioned that a tribal police officer had told him about a federal warrant and that he had told the police officer that he had commitments and ceremonies to perform before surrendering to law enforcement. When Agent Elton asked Mr. Chipps when he found out about the warrant, he replied that he had found out about it three years earlier. The government put evidence of this exchange before the jury. Miranda, 384 U.S. at 444, 86 S.Ct. 1602, prohibits the government from introducing into evidence statements made by -the defendant during a custodial interrogation unless the defendant has been previously advised of his fifth amendment privilege against self-incrimination and right to an attorney. The government does not dispute that Mr. Chipps was in custody or that he had not received Miranda warnings. The only question' is whether Agent Elton interrogated" }, { "docid": "13789886", "title": "", "text": "was probable cause to support the warrant without the supposedly false statement, we need not decide whether it is false. See Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. That said, we doubt that the statement in the warrant affidavit is anything more than a reasonable rephrasing of Mr. Red Elk’s statement to the FBI. III. Mr. Chipps next argues that the district court should have suppressed two sets of statements that he made to law enforcement officers because the officers had not apprised him of his Miranda rights before either set of statements. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Mr. Chipps made the first group of statements while law enforcement officials were executing a search warrant at his house. His argument with regard to these statements is untenable. Our review of the record indicates that no evidence of these statements was ever introduced at trial. Thus, the district court’s decision not to suppress the statements did not harm Mr. Chipps. We, therefore, turn to the second set of statements. The district court did not explicitly find the following facts. We think, though, that the district court’s holding that Mr. Chipps’s statements were voluntary and spontaneous includes an implicit finding of the following facts, particularly the fact that there was about one minute of silence between the first part of the conversation and the second. Cf. Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d 361, 368 (8th Cir.1988). Also, Mr. Chipps does not challenge these facts. FBI agent Michael Elton fingerprinted Mr. Chipps the day after Mr. Chipps’s arrest. Agent Elton told Mr. Chipps that he had been one of the law enforcement officers who had tried to stop Mr. Chipps on Interstate 90 on the previous day. Mr. Chipps responded that he would have pulled over (and not led the officers on a high-speed pursuit) had they identified themselves — the first group of officers who tried to stop Mr. Chipps on the day of the arrest were driving unmarked cars. After about a minute of silence, Mr. Chipps said" }, { "docid": "21739366", "title": "", "text": "(“An officer’s attempt to seek clarification of an ambiguous statement is not generally construed as interrogation for Miranda purposes if the question does not enhance the defendant’s guilt or raise the offense to a higher degree!.]” (internal quotation omitted)); see United States v. Jones, 842 F.3d 1077, 1083 (8th Cir. 2016) (holding that officer who asked defendant what he meant after he said “You finally fucking got me” was admissible because “[a]n officer’s request for clarification of a spontaneous statement does generally not amount to interrogation” (alteration in original) (internal quotation omitted)). Jackson argues that because the officers knew his federal warrant was in part for methamphetamine use, he had not slept, and he had recently been high on meth, they were aware of his “unusual susceptibility” to questioning, particularly about medications and mental health. Innis, 446 U.S. at 302 n.8, 100 S.Ct. 1682 (“Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect.”). However, this knowledge would have also raised concerns about Jackson’s physical and mental health and the limited questioning related to those concerns did not represent an attempt to persuade him to speak about the crimes. 3. Haircut Finally, Jackson argues that Agent Bennett’s question about the last time he cut his hair exceeded the scope of permissible questioning and became interrogation. Adopting Agent Coulter’s explanation, the district court lumped the haircut question in with those concerning medications, allergies, and well-being, finding them permissible because they were “meant to ascertain the status of Jackson’s health” and because the agents had no reason to know “such questions would elicit any incriminating response.” Regardless of its relevance, if any, to assessing Jackson’s health, the question regarding Jackson’s last haircut crossed the line into improper interrogation. At the suppression hearing, Agent Coulter testified that prior to interviewing Jackson, he and Agent Bennett went to the apartment where Jackson was arrested, interviewed" } ]

[ { "docid": "22641777", "title": "", "text": "S. 507, 511, pointed out that in deciding the question of finality the most important competing considerations are “the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.” Such competing considerations are shown by the record in the case before us. It is true that the review of this case by the Court of Appeals could be called “piecemeal”; but it does not appear that the inconvenience and cost of trying this case will be greater because the Court of Appeals decided. the issues raised instead of compelling the parties to go to trial with them unanswered. We cannot say that the Court of Appeals chose wrongly under the circumstances. And it seems clear now that the case is before us that the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the ease back with those issues undecided. Moreover, delay of perhaps a number of years in having the brother’s and sisters’ rights determined might work a great injustice on them, since the claims for recovery for their benefit have been effectively cut off so long as the District. Judge’s ruling stands. And while their claims are not formally severable so as to make the court’s order unquestionably appealable as to them, cf. Dickinson v. Petroleum Conversion Corp., supra, there certainly is ample reason to view their claims as severable in deciding the issue of finality, particularly since the brother and sisters were separate parties in the petition for extraordinary relief. Cf. Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U. S. 684, 688-689; Gumbel v. Pitkin, 113 U. S. 545, 548. Furthermore, in United States v. General Motors Corp., 323 U. S. 373, 377, this Court contrary to its usual practice reviewed a trial court’s refusal to permit proof of certain items of damages in a case not yet fully tried, because the ruling was “fundamental. to the further conduct of the, case.” For these same reasons this" } ]

[ { "docid": "17232758", "title": "", "text": "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). While the courts do not treat the finality requirement lightly, they recognize some special exceptions to the requirement, generally so as to avoid causing serious harm by delaying the appeal. See, e.g., Exennium, 715 F.2d at 1402 (citing Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964) (“danger of denying justice by delay” outweighed “inconvenience and costs of piecemeal reviews.”)); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (collateral order doctrine); Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848) (Forgay-Conrad rule, order treated as final if it directs delivery of property and irreparable harm would result if appeal delayed). A threshold issue presented by this case, apparently for the first time in this circuit, is whether a decision of the appellate panel affirming an order that denies relief from the automatic stay is final for the purpose of this court’s jurisdiction. We think it is. In reaching this conclusion, we adopt the reasoning of the court in In re Regency Woods Apartments, LTD, 686 F.2d 899, 902 (11th Cir.1982). In Regency, the court initially observed that the collateral order doctrine and Forgay-Conrad rule appeared to apply to a district court order granting relief from the automatic stay. More important, the court also noted the provisions of the Bankruptcy Code for expedited and ex parte proceedings on complaints for relief from the automatic stay. 11 U.S.C. § 362(e), (f); see also H.Rep. No. 595, 95th Cong. 2d Sess. 344, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5963, 300-301. From these provisions the court concluded, and we agree, that Congress intended the courts to conclusively and expeditiously adjudicate, apart from the bankruptcy proceedings as a whole, complaints for relief from the automatic stay. Immediate appeal from decisions of the bankruptcy appellate panel is plainly necessary to fulfill such" }, { "docid": "6054487", "title": "", "text": "Circuit has also emphasized that the requirement of finality is to be given a practical rather than a technical construction. Id. (citing Eisen v. Carlisle & Jac-quelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). In cases of marginal finality, the Sixth Circuit has adopted what has become known as the Gillespie doctrine. Vause v. Capital Poly Bag, Inc., 886 F.2d 794, 797 (1989). In certain close cases where finality cannot be conclusively resolved, the court has determined that the “danger of denying justice by delay outweighs the inconvenience and costs of piecemeal review, particularly when the questions on appeal are fundamental to the further outcome of the case.” Id. (quoting Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964)). The Gillespie doctrine, therefore, “permits the courts of appeals to decide the merits in cases of marginal finality where the course of litigation would be impeded, rather than advanced, by dismissing the appeal.” Id. The Proponents contend that the Bankruptcy Court’s statement on January 10, 2000 that the December 21 Opinion “did not amend, modify or otherwise change the order confirming the plan” does not establish that the December 21 Opinion did not modify the November 30 Confirmation Order. Nor should it matter that the December 21 ruling is labeled an “opinion” instead of an “order.” In support of this contention, the Proponents quote the Ninth Circuit which has stated that: [f]or purposes of determining appealability of an order, “the trial judge’s characterization of his own action cannot control the classification of the action.” The court should instead focus on the effect of the ruling rather than the label placed on it. Lee, 786 F.2d at 955 (quoting United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978)) (other citations omitted). The Proponents also cite American Motors Corp. v. FTC, 601 F.2d 1329, 1331 n. 2 (6th Cir.1979) and United States v. Battisti, 486 F.2d 961, 967 (6th Cir.1973), which stand for the proposition that appealability of an order depends on its substantial effect versus" }, { "docid": "18599617", "title": "", "text": "How. 201, 47 U.S. 201, 12 L.Ed. 404 (1847). Perhaps the most extreme refinement of the finality concept is found in Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964), which holds that even an order of marginal finality should be reviewed if the question presented is fundamental to further conduct of the case. All of these doctrinal exceptions to the strict rule of finality ultimately rest on a single theory: the scope of appellate jurisdiction must be defined by balancing “the costs and inconvenience of piecemeal review on the one hand and the danger of denying justice on the other.” Id., 85 S.Ct. at 311 (quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950)). Consequently, the statutory requirement of finality is a flexible concept, grounded in the practicalities of the situation. This accommodative approach is vital in the context of bankruptcy. Viewed realistically, a bankruptcy case is simply an aggregation of controversies, many of which would constitute individual lawsuits had a bankruptcy petition never been filed. While the goal of the bankruptcy process is to bring all present and potential contestants together and decide all the claims at the same time, a truly simultaneous resolution is impossible. Each claim represents a variable which must be quantified before a dividend is fixed or a workable reorganization plan adopted. Delayed review of any particular claim, especially claims involving key assets of the debtor’s estate, would render any distribution or plan purely contingent until completion of appeals after conclusion of the case. Such an approach would be especially devastating in reorganizations, which proceed most smoothly when at least some variables become fixed and operate as the basis for further negotiation. In recognition of these factors, finality of bankruptcy orders cannot be limited to the last order concluding the bankruptcy case as a whole. This circuit and others reviewing bankruptcy decisions have freely applied the collateral order doctrine and the Forgay-Conrad rule to escape such results. See In re Regency Woods Apartments, 686 F.2d 899" }, { "docid": "23092420", "title": "", "text": "the statutory language, the usual connotations of the terms “due” and “accrued,” the explicit provisions of the Lease, and the absence of reported eases favorable to [CPB’s] position. 105 B.R. at 401. II. Jurisdiction Before addressing the merits of the District Court’s disposition of this case, we are obligated to determine sua sponte whether we are presented with a final order on appeal. See Bowers v. Connecticut Nat’l Bank, 847 F.2d 1019,1022 (2d Cir.1988); In re Exennium, Inc., 715 F.2d 1401, 1402 (9th Cir.1983). This Court’s jurisdiction is confined to “appeals from all final decisions, judgments, orders, and decrees” of district courts sitting in review of bankruptcy courts. 28 U.S.C. § 158(d) (emphasis added). Although the Bankruptcy Court explicitly reserved ruling on the claim for future damages, see note 2, supra, the District Court nevertheless concluded that the Bankruptcy Court’s order was final under 28 U.S.C. § 158(a), “because the order conclusively determines a separable dispute over a creditor’s claim. The ruling conclusively determined that appellant was not entitled to his separable claim of unpaid prepetition rent in the amount of $36,000. Accordingly, the matter is properly before this Court.” 105 B.R. at 401. The finality of the order, however, is put in doubt because CPB presented a single, two-part claim under 11 U.S.C. § 502(b)(6) for damages it suffered from the lease rejection. The claim sought past damages (pre-petition rent) under subsection 502(b)(6)(B), and future damages (the upcoming year’s rent) under subsection 502(b)(6)(A). Only the past damages part of the two-part claim for past and future damages was ruled on by the Bankruptcy Court. The Seventh Circuit has explained that, “Finality of the order comes from the fact that it resolves all of [the creditor’s] claims against the estate.” In re Morse Elec. Co., 805 F.2d 262, 265 (7th Cir.1986) (emphasis in original). The mere fact that a dispute is “separable” does not automatically make it a final appealable order. The order sought to be appealed “must constitute final determination of the rights of the parties to secure the relief they seek in this suit.” In re Texas Extrusion" }, { "docid": "23092421", "title": "", "text": "prepetition rent in the amount of $36,000. Accordingly, the matter is properly before this Court.” 105 B.R. at 401. The finality of the order, however, is put in doubt because CPB presented a single, two-part claim under 11 U.S.C. § 502(b)(6) for damages it suffered from the lease rejection. The claim sought past damages (pre-petition rent) under subsection 502(b)(6)(B), and future damages (the upcoming year’s rent) under subsection 502(b)(6)(A). Only the past damages part of the two-part claim for past and future damages was ruled on by the Bankruptcy Court. The Seventh Circuit has explained that, “Finality of the order comes from the fact that it resolves all of [the creditor’s] claims against the estate.” In re Morse Elec. Co., 805 F.2d 262, 265 (7th Cir.1986) (emphasis in original). The mere fact that a dispute is “separable” does not automatically make it a final appealable order. The order sought to be appealed “must constitute final determination of the rights of the parties to secure the relief they seek in this suit.” In re Texas Extrusion Corp., 844 F.2d 1142, 1155 (5th Cir.), cert. denied, — U.S. -, 109 S.Ct. 311, 102 L.Ed.2d 330 (1988). We nevertheless conclude that the future damages half of the claim is effectively final, and that this Court therefore has jurisdiction to decide the appeal on its merits. The parties informed the Court during oral argument that the debtors have never objected to CPB’s future damages claim, and that the claim is currently a part of the debtors’ reorganization plan. “A claim ... is deemed allowed, unless a party in interest ... objects.” 11 U.S.C. § 502(a). Although the Bankruptcy Code does not place a time limit on objecting to a claim, it is doubtful that the debtors could raise such an objection at this late date. In addition, there is no question of whether CPB might mitigate its future damages claim, since CPB was unable to rent the property during 1986. Finally, there is no bankruptcy procedure available to appellants to secure a ruling on an unobjected-to claim. Our conclusion on jurisdiction is strengthened because" }, { "docid": "17232757", "title": "", "text": "the secured party for the delay....” 27 Bankr. at 1009. While Crocker argued that the focus of protection was the value of its interest in the collateral, the majority concluded that “[a] construction more consistent with the language and policy to be served would recognize that it is the value of the collateral which is the focus of protection.” 27 B.R. at 1010. Since the trial court had protected the collateral against depreciation, the majority affirmed the trial court’s judgment as “consistent with the policy and language of § 361(1).” III. Jurisdiction In reviewing appeals from the bankruptcy courts, we have recognized “[o]ur obligation to determine sua sponte the finality of the order on appeal.” In re Exennium, Inc., 715 F.2d 1401, 1402 (9th Cir.1983). In bankruptcy cases the jurisdiction of this court is limited to “all final decisions” of the bankruptcy appellate panels and those exceptional cases set out in 28 U.S.C. § 1293(b). 28 U.S.C. § 1293; In re Mason, 709 F.2d 1313, 1315 (9th Cir.1983). “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). While the courts do not treat the finality requirement lightly, they recognize some special exceptions to the requirement, generally so as to avoid causing serious harm by delaying the appeal. See, e.g., Exennium, 715 F.2d at 1402 (citing Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964) (“danger of denying justice by delay” outweighed “inconvenience and costs of piecemeal reviews.”)); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (collateral order doctrine); Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848) (Forgay-Conrad rule, order treated as final if it directs delivery of property and irreparable harm would result if appeal delayed). A threshold issue presented by this case, apparently for the first time in this circuit, is whether a decision of the appellate panel" }, { "docid": "13212594", "title": "", "text": "the order at issue was final, the court heavily relied on the United States Supreme Court’s “Gillespie doctrine”: In certain close cases where finality cannot be conclusively resolved, the “danger of denying justice by delay” outweighs “the inconvenience and costs of piecemeal review,” particularly when the questions on appeal are “fundamental to the further outcome of the case.” Vause, 886 F.2d at 798 (quoting Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152-54, 85 S.Ct. 308, 310-12,13 L.Ed.2d 199 (1964)). In this appeal the disputed question is whether the Bankruptcy Court was correct in approving Jacques-Miller as real estate agent for the Debtors. This Court views the employment issue as separable from the overall Chapter 11 proceeding but, more importantly, also finds the employment question “fundamental to the further outcome of the case” under the Gillespie doctrine. The U.S. Trustee points out that the immediate resolution of the employment of Jacques-Miller will materially advance the ultimate termination of the bankruptcy cases, in that if this Court does not rule now on the issue, the Trustee inevitably will appeal any orders allowing the proposed sales in each Debtor’s ease, and such appeals might be filed individually if the sales occur at different times. See Trustee’s Memorandum of Law in Support of Motion For Leave to Appeal. As this Court seeks to prevent the denial of justice by delay, it is appropriate to view the Order as final and resolve the propriety of authorizing the employment of an interested professional on this appeal. This interpretation is supported by the Sixth Circuit’s decision in Bauer v. Commerce Union Bank, 859 F.2d 438 (6th Cir. 1988), cert. denied, Bauer v. Waldschmidt, — U.S.-, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989), in which the court applied the “collateral order” doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To qualify as a collateral order, and thus be entitled to immediate appeal, a decision must: (i) ‘conclusively determine the disputed question’; (ii) ‘resolve an important issue completely separate from the merits of the action’; and (iii)" }, { "docid": "23092422", "title": "", "text": "Corp., 844 F.2d 1142, 1155 (5th Cir.), cert. denied, — U.S. -, 109 S.Ct. 311, 102 L.Ed.2d 330 (1988). We nevertheless conclude that the future damages half of the claim is effectively final, and that this Court therefore has jurisdiction to decide the appeal on its merits. The parties informed the Court during oral argument that the debtors have never objected to CPB’s future damages claim, and that the claim is currently a part of the debtors’ reorganization plan. “A claim ... is deemed allowed, unless a party in interest ... objects.” 11 U.S.C. § 502(a). Although the Bankruptcy Code does not place a time limit on objecting to a claim, it is doubtful that the debtors could raise such an objection at this late date. In addition, there is no question of whether CPB might mitigate its future damages claim, since CPB was unable to rent the property during 1986. Finally, there is no bankruptcy procedure available to appellants to secure a ruling on an unobjected-to claim. Our conclusion on jurisdiction is strengthened because courts may decide the merits in cases of “marginal” finality under the Supreme Court’s Gillespie doctrine. Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). In certain close cases where finality cannot be conclusively resolved, the “danger of denying justice by delay” outweighs “the inconvenience and costs of piecemeal review,” particularly when the questions on appeal are “fundamental to the further outcome of the case.” Id. at 152-54, 85 S.Ct. at 310-12. “The Gillespie doctrine, therefore, permits the courts of appeals to decide the merits in cases of marginal finality where the course of litigation would be impeded, rather than advanced, by dismissing the appeal.” In re Exennium, 715 F.2d at 1402-03 (citations omitted). In this case, the Bankruptcy Court decided the past damages part of the claim over two-and-one-half years ago, and the future damages part of the claim has been decided de facto through its participation without objection in debtors’ reorganization plan. To dismiss the litigation now would impede rather than advance the litigation because the" }, { "docid": "22262577", "title": "", "text": "discretion to withhold its entry or otherwise to frustrate the agreement. Therefore, contrary to the contentions of the defendants, a Rule 68 judgment inherently possesses a significant degree of finality because of the absence of court discretion in its implementation. Its finality is also indicated by the fact that a Rule 68 judgment results from a binding contract, as we discuss more fully in Part III of this opinion. Based on these considerations, we conclude that the appealability of the Rule 60(b) order is not affected by a claimed lack of finality in the Rule 68 judgment. Further, even assuming that a Rule 68 judgment does not satisfy the finality requirements of 28 U.S.C. § 1291, when a party has obtained relief from such a judgment pursuant to Rule 60(b), we have jurisdiction to review the order granting such relief under the Supreme Court’s “Gillespie doctrine.” Gillespie v. United States, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). We described this doctrine of “marginal” finality in In re Vause, 886 F.2d 794, 798 (6th Cir.1989). In certain close cases where finality cannot be conclusively resolved, the “danger of denying justice by delay” outweighs “the inconvenience and costs of piecemeal review,” particularly when the questions on appeal are “fundamental to the further outcome of the case.” Id. [Gillespie ] at 152-54, 85 S.Ct. at 310-12. “The Gillespie doctrine, therefore, permits the courts of appeals to decide the merits in cases of marginal finality where the course of litigation would be impeded, rather than advanced, by dismissing the appeal.” In re Exennium [In re Exennium, 715 F.2d 1401 (9th Cir.1983) ] 715 F.2d at 1402-03 (citations omitted). III. Having concluded that the Rule 60(b)(6) order granting relief from the Rule 68 judgment is immediately appealable, we turn to the issue of the propriety of that order in this case. Our standard of review is abuse of discretion, as Rule 60(b) makes the district court’s response to a motion for relief from judgment discretionary. A. In cases construing Rule 68 judgments where the parties disagree as to what was intended, the" }, { "docid": "2669972", "title": "", "text": "resolved. Id. at 152, 85 S.Ct. at 311. Practical considerations, however, required a decision on the merits. The “danger of denying justice by delay” outweighed “the inconvenience and costs of piecemeal review,” particularly because the questions on appeal were “fundamental to the further outcome of the case.” Id. at 152-54, 85 S.Ct. at 310-12. The Court heard the case. The Gillespie doctrine, therefore, permits the courts of appeals to decide the merits in cases of marginal finality where the course of litigation would be impeded, rather than advanced, by dismissing the appeal. See Smith v. Eggar, 655 F.2d 181, 184-85 (9th Cir.1981); Wescott v. Impresas Armadoras, S.A. Panama, 564 F.2d 875, 880-81 (9th Cir.1977); 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 110.12 (1983). While we are not inclined to treat the requirement of finality lightly, we do recognize that, in general, bankruptcy proceedings differ significantly from others and that, in this case specifically, a ruling on the propriety of the sales to Pierson will advance, and not impede, the bankruptcy proceedings. Pierson’s qualifications to purchase Exennium’s property raise an issue “fundamental to the further outcome of this case.” Until settled this issue will cast its shadow over further administration of the estate. It is now more than two years after the initial sale, the validity of that sale has been fully litigated in two courts, yet if we dismiss the appeal it could be years before the property can be finally distributed. The uncertainty over title has already created another round of litigation over responsibility for past-due rents. The uncertainty can impose other costs as well. Purchasers are likely to demand a steep discount in return for investing in the property. And disqualifying Pierson may deprive the estate of its highest bidder. Similar problems surround the other three leases and the personal property. At the same time, resolution at this stage — particularly now that the appeal has been argued — will consume few additional judicial resources. We thus conclude that the approach endorsed in Gillespie requires us to hear this appeal. Our holding comports" }, { "docid": "23092423", "title": "", "text": "courts may decide the merits in cases of “marginal” finality under the Supreme Court’s Gillespie doctrine. Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). In certain close cases where finality cannot be conclusively resolved, the “danger of denying justice by delay” outweighs “the inconvenience and costs of piecemeal review,” particularly when the questions on appeal are “fundamental to the further outcome of the case.” Id. at 152-54, 85 S.Ct. at 310-12. “The Gillespie doctrine, therefore, permits the courts of appeals to decide the merits in cases of marginal finality where the course of litigation would be impeded, rather than advanced, by dismissing the appeal.” In re Exennium, 715 F.2d at 1402-03 (citations omitted). In this case, the Bankruptcy Court decided the past damages part of the claim over two-and-one-half years ago, and the future damages part of the claim has been decided de facto through its participation without objection in debtors’ reorganization plan. To dismiss the litigation now would impede rather than advance the litigation because the past-damages claim will be a fundamental component of the reorganization plan, affecting not only CPB’s rights, but also those of other creditors and the Yauses. Moreover, effective finality of the future damages issue minimizes the prospect of piecemeal review. III. The Merits A. Standard of Review Because this Court has jurisdiction, we must decide the proper interpretation of “any unpaid rent due under such lease” under section 502(b)(6)(B). Statutory interpretation is a question of law which this Court reviews de novo. In re Southwest Aircraft Servs., Inc., 831 F.2d 848, 849 (9th Cir.1987). See In re Caldwell, 851 F.2d 852, 857 (6th Cir.1988). The objective of statutory construction is to “ascertain the intent of Congress.” 831 F.2d at 849 (citing Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975)). B. Statutory Language/Plain Meaning The starting point in determining legislative intent is the language of the statute itself. Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); Watt v. Alaska, 451 U.S. 259, 265,101" }, { "docid": "23092419", "title": "", "text": "of $36,000 for one year’s loss of future rent, the maximum allowed under 11 U.S.C. § 502(b)(6)(A). The debtors objected to the past damages part of the claim, arguing that there was no unpaid rent “due under [the] lease” because their obligation did not become “due and payable” under the specific terms of CPB’s lease until four days after the bankruptcy filing date. Therefore, the Vauses contended, the claim exceeded the ceiling established under 11 U.S.C. § 502(b)(6)(B). Accepting the Vauses’ argument, the Bankruptcy Court found that, “the language of § 502(b)(6)(B) is unambiguous and specific in its meaning.” 72 B.R. at 651. The District Court agreed with the Bankruptcy Court that, section 502(b)(6)(B) is unambiguous and specific in its meaning, that the determinative date in the case was the filing date, and that there was no unpaid rent due under the Lease on the date of [debtors’] bankruptcy filing. In making these determinations, [the Bankruptcy Court] considered the applicable statutory language, the lack of specific legislative history indicating an expansive or unusual meaning for the statutory language, the usual connotations of the terms “due” and “accrued,” the explicit provisions of the Lease, and the absence of reported eases favorable to [CPB’s] position. 105 B.R. at 401. II. Jurisdiction Before addressing the merits of the District Court’s disposition of this case, we are obligated to determine sua sponte whether we are presented with a final order on appeal. See Bowers v. Connecticut Nat’l Bank, 847 F.2d 1019,1022 (2d Cir.1988); In re Exennium, Inc., 715 F.2d 1401, 1402 (9th Cir.1983). This Court’s jurisdiction is confined to “appeals from all final decisions, judgments, orders, and decrees” of district courts sitting in review of bankruptcy courts. 28 U.S.C. § 158(d) (emphasis added). Although the Bankruptcy Court explicitly reserved ruling on the claim for future damages, see note 2, supra, the District Court nevertheless concluded that the Bankruptcy Court’s order was final under 28 U.S.C. § 158(a), “because the order conclusively determines a separable dispute over a creditor’s claim. The ruling conclusively determined that appellant was not entitled to his separable claim of unpaid" }, { "docid": "2669971", "title": "", "text": "693 F.2d 73, 75-76 (9th Cir.1982); e.g., In re Mason, 709 F.2d 1313, 1315 (9th Cir.1983). The determination of finality generally is guided by the principles of 28 U.S.C. § 1291, even though section 1293 frees us to develop new principles to fit the special problems of bankruptcy administration, see id. at 1316-18. A final judgment has been said to be one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Finality in this case is put in doubt because the BAP’s order, while preventing only Pierson, a nonparty, from purchasing estate property, does not settle the dispute between Karbach and the trustee. Our task is lightened, however, because of the doctrine of Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). There the Supreme Court faced an order in the “twilight zone” of “marginal” rulings whose finality could not be conclusively resolved. Id. at 152, 85 S.Ct. at 311. Practical considerations, however, required a decision on the merits. The “danger of denying justice by delay” outweighed “the inconvenience and costs of piecemeal review,” particularly because the questions on appeal were “fundamental to the further outcome of the case.” Id. at 152-54, 85 S.Ct. at 310-12. The Court heard the case. The Gillespie doctrine, therefore, permits the courts of appeals to decide the merits in cases of marginal finality where the course of litigation would be impeded, rather than advanced, by dismissing the appeal. See Smith v. Eggar, 655 F.2d 181, 184-85 (9th Cir.1981); Wescott v. Impresas Armadoras, S.A. Panama, 564 F.2d 875, 880-81 (9th Cir.1977); 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 110.12 (1983). While we are not inclined to treat the requirement of finality lightly, we do recognize that, in general, bankruptcy proceedings differ significantly from others and that, in this case specifically, a ruling on the propriety of the sales to Pierson will advance, and not impede, the bankruptcy" }, { "docid": "13212593", "title": "", "text": "district courts must hear appeals from final judgments, orders and decrees of the bankruptcy courts according to 28 U.S.C. § 158(a), and they have discretion whether to hear interlocutory orders and decrees of the bankruptcy courts. The U.S. Trustee argues that the Bankruptcy Court’s Order authorizing employment of Jacques-Miller is a final order or, in the alternative, meets the requirements of the district court in granting leave to appeal interlocutory orders. Although the April 2, 1990 Order meets the requirements for immediate appeal of an interlocutory order, this Court finds the Order at issue may be treated as a final order under Sixth Circuit precedent and, therefore, grants the U.S. Trustee’s motion for leave to appeal. In In re Vause, 886 F.2d 794 (6th Cir.1989) the Sixth Circuit qualified the district court’s determination that an order is final if it “conclusively determines a separable dispute over a creditor’s claim,” by explaining that “[t]he mere fact that a dispute is ‘separable’ does not make it a final appealable order.” Id. at 797. However, in finding that the order at issue was final, the court heavily relied on the United States Supreme Court’s “Gillespie doctrine”: In certain close cases where finality cannot be conclusively resolved, the “danger of denying justice by delay” outweighs “the inconvenience and costs of piecemeal review,” particularly when the questions on appeal are “fundamental to the further outcome of the case.” Vause, 886 F.2d at 798 (quoting Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152-54, 85 S.Ct. 308, 310-12,13 L.Ed.2d 199 (1964)). In this appeal the disputed question is whether the Bankruptcy Court was correct in approving Jacques-Miller as real estate agent for the Debtors. This Court views the employment issue as separable from the overall Chapter 11 proceeding but, more importantly, also finds the employment question “fundamental to the further outcome of the case” under the Gillespie doctrine. The U.S. Trustee points out that the immediate resolution of the employment of Jacques-Miller will materially advance the ultimate termination of the bankruptcy cases, in that if this Court does not rule now on the issue, the Trustee" }, { "docid": "22262578", "title": "", "text": "(6th Cir.1989). In certain close cases where finality cannot be conclusively resolved, the “danger of denying justice by delay” outweighs “the inconvenience and costs of piecemeal review,” particularly when the questions on appeal are “fundamental to the further outcome of the case.” Id. [Gillespie ] at 152-54, 85 S.Ct. at 310-12. “The Gillespie doctrine, therefore, permits the courts of appeals to decide the merits in cases of marginal finality where the course of litigation would be impeded, rather than advanced, by dismissing the appeal.” In re Exennium [In re Exennium, 715 F.2d 1401 (9th Cir.1983) ] 715 F.2d at 1402-03 (citations omitted). III. Having concluded that the Rule 60(b)(6) order granting relief from the Rule 68 judgment is immediately appealable, we turn to the issue of the propriety of that order in this case. Our standard of review is abuse of discretion, as Rule 60(b) makes the district court’s response to a motion for relief from judgment discretionary. A. In cases construing Rule 68 judgments where the parties disagree as to what was intended, the courts apply contract principles. See for example, Radecki v. Amoco Oil Co., 858 F.2d 397, 400 (8th Cir.1988) (“[t]o decide whether there has been a valid offer and acceptance for the purposes of Rule 68, courts apply the principles of contract law”); Johnson v. Univ. College of the Univ. of Alabama, 706 F.2d 1205, 1209 (11th Cir.), cert. denied, 464 U.S. 994, 104 S.Ct. 489, 78 L.Ed.2d 684 (1983) (for a valid Rule 68 agreement to have been formed, there must be a “meeting of the minds” under elementary princi- pies of contract law). If contract principles apply to the formation of a Rule 68 agreement, as many courts have concluded, it would logically follow that only traditional contract defenses could be used to extricate a party from an otherwise binding agreement. In the present case, there are no circumstances which would permit the defendants to invoke a traditional contract defense to the valid Rule 68 contract. A Rule 68 judgment is a consent judgment of a particular kind. Its unique characteristics — a cost-shifting" }, { "docid": "23092442", "title": "", "text": "added). While we conclude that the future damages claim is effectively final, see Part II infra, no such conclusion can be drawn on the interest issue. We therefore AFFIRM the District Court’s holding that the issue was not appropriately on appeal. . See 11 U.S.C. § 502(a) (\"A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects.\"). . We are not unmindful of the narrow scope the Supreme Court has given to the Gillespie doctrine. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n. 30, 98 S.Ct. 2454, 2462, n. 30, 57 L.Ed.2d 351 (1978). . The \"earlier of such dates” under § 502(b)(6)(A), as properly found by the Bankruptcy Court, was the petition filing date of November 27, 1985, § 502(b)(6)(A)(i), since the Vauses did not abandon the property until December 1985, § 502(b)(6)(A)(ii). The parties agree (with the exception of the interest issue discussed in note 2, supra ) that CPB’s claim for future rent in this case is limited to a maximum of one year's rent, i.e., $36,000. . If the word “due” was not ambiguous, this case would require analysis under the Supreme Court’s Holy Trinity doctrine, which allows the Court to look behind the “plain meaning” of a statute when a literal reading would produce \"absurd” results clearly unintended by Congress. See Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). See also Public Citizen v. Department of Justice, — U.S.-, 109 S.Ct. 2558, 2566, 105 L.Ed.2d 377 (1989); Green v. Bock Laundry Mach. Co., —. u.S.-, 109 S.Ct. 1981, 1984, 104 L.Ed.2d 557 (1989) (literal reading of statute would \"compel an odd result”). . § 4-403(b)(6)(B), The Report of the Commission on the Bankruptcy Laws of the United States (“1973 Commission Report”), H.R. Doc. No. 93-137, 93rd Cong., 1st Sess. 100 (1973), reprinted in Collier on Bankruptcy, Appendix Vol. 2 (15th ed. 1989). See 72 B.R. at 649. The use of the term “accrued” is also found in" }, { "docid": "6054486", "title": "", "text": "Since the Bankruptcy Court did not specifically address the injunction and release issues either in its Findings of Fact and Conclusions of Law or in the November 30 Confirmation Order, the Proponents reasonably believed that the reorganization plan had been confirmed as written, and all issues had been settled with finality. The Appellants who objected to the Plan also reasonably believed that the injunction and release provisions had been confirmed by the Bankruptcy court’s November 30 Confirmation Order as evidenced by their own timely appeals of the confirmation of those provisions. As indicated above, this Court has jurisdiction to hear appeals “from final judgments, orders, and decrees” entered by bankruptcy courts. 28 U.S.C. § 158(a). The Sixth Circuit has adopted the Supreme Court’s definition of a final order as one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Whittington v. Milby, 928 F.2d 188, 191 (6th Cir.1991) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). This Circuit has also emphasized that the requirement of finality is to be given a practical rather than a technical construction. Id. (citing Eisen v. Carlisle & Jac-quelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). In cases of marginal finality, the Sixth Circuit has adopted what has become known as the Gillespie doctrine. Vause v. Capital Poly Bag, Inc., 886 F.2d 794, 797 (1989). In certain close cases where finality cannot be conclusively resolved, the court has determined that the “danger of denying justice by delay outweighs the inconvenience and costs of piecemeal review, particularly when the questions on appeal are fundamental to the further outcome of the case.” Id. (quoting Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964)). The Gillespie doctrine, therefore, “permits the courts of appeals to decide the merits in cases of marginal finality where the course of litigation would be impeded, rather than advanced, by dismissing the appeal.” Id. The Proponents contend that the Bankruptcy Court’s statement on January 10," }, { "docid": "22297686", "title": "", "text": "it was not maintainable under amended Rule 23(c) (1) of the Federal Rules of Civil Procedure. Judge Tyler granted the motion and dismissed the class action, but did not dismiss Eisen’s individual claims or pass on their merits. It is too clear for discussion that all orders are not appealable. 28 U.S.C. § 1291 provides that the courts of appeals have jurisdiction of appeals from all “final” decisions of the district courts, while 28 U.S.C. § 1292 permits appeals from a narrowly limited class of interlocutory orders. But as the Supreme Court has commented, “[A] decision ‘final’ within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case.” Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). The question presented to us, therefore, is whether Judge Tyler’s order dismissing the class action falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). In making this determination, Justice Black’s language in the Gillespie case is instructive: [I] t is impossible to devise a formula to resolve all marginal cases coming within what might well be called the “twilight zone” of finality. Because of this difficulty this Court has held that the requirement of finality be given a “practical rather than a technical construction.” * * * [I]n deciding the question of finality the most important competing considerations are “the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.” 379 U.S. at 152-153, 85 S.Ct. at 311 (emphasis supplied). In the present case, these considerations, rather than being “competitive,” lead to a single conclusion — that the order dismissing this class action is appealable. The alternatives are to" }, { "docid": "23092441", "title": "", "text": "Inc., 831 F.2d at 853. IV. Conclusion For the reasons stated above, we REVERSE and REMAND the pre-petition rent issue to the District Court to in turn remand this case to the Bankruptcy Court for further proceedings consistent with this opinion. We AFFIRM the District Court’s holding that the issue of CPB’s right to interest was not properly before the Court on appeal. . The Bankruptcy Court’s decision is reported at 72 B.R. 647 (S.D.Ohio 1987). The District Court’s decision, is reported at 105 B.R. 399 (S.D.Ohio 1988). . CPB raises a second issue, arguing that the Bankruptcy Court effectively denied its claim for interest under 11 U.S.C. § 506(b) because the court stated that the “claim in this case shall be restricted to a maximum amount of $36,-000....” 72 B.R. at 651. As the District Court observed, the Bankruptcy Court explicitly made ”[n]o ruling ... at this time on the actual amount allowable to CPB for [the future damages] portion of its claim or upon the issue of CPB’s entitlement to interest.\" Id. (emphasis added). While we conclude that the future damages claim is effectively final, see Part II infra, no such conclusion can be drawn on the interest issue. We therefore AFFIRM the District Court’s holding that the issue was not appropriately on appeal. . See 11 U.S.C. § 502(a) (\"A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects.\"). . We are not unmindful of the narrow scope the Supreme Court has given to the Gillespie doctrine. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n. 30, 98 S.Ct. 2454, 2462, n. 30, 57 L.Ed.2d 351 (1978). . The \"earlier of such dates” under § 502(b)(6)(A), as properly found by the Bankruptcy Court, was the petition filing date of November 27, 1985, § 502(b)(6)(A)(i), since the Vauses did not abandon the property until December 1985, § 502(b)(6)(A)(ii). The parties agree (with the exception of the interest issue discussed in note 2, supra ) that CPB’s claim for future rent in" }, { "docid": "22335388", "title": "", "text": "Thus, neither the bankruptcy court’s denial of Fruehauf’s motion for administrative priority nor the district court’s affirmance of that denial is a final order. The bankruptcy court’s denial of Fruehauf’s motion to dismiss is even more clearly not appealable as a final order. Jartran appears to recognize this, apparently conceding the interlocutory character of this portion of the appeal — but arguing that if jurisdiction exists as to the administrative claim issue, disposition of that issue would “subsume” the issue involved in the motion to dismiss. Supp. Brief of Appellee at 12. Because we have concluded that the portion of the order disposing of the administrative claim is not a final order, we need not reach the issue whether a kind of “pendent” jurisdiction lies as to the motion to dismiss. This court has already held that denials of motions to dismiss are generally not final orders, even in the bankruptcy context. In re Cash Currency, 762 F.2d 542, 546 (7th Cir.1985) (“The orders permitting limited intervention by the Director, denying his motion to dismiss the Chapter 11 petitions, and appointing a bankruptcy trustee were interlocutory and reviewable only if the district court agreed to entertain the appeals.”); accord In re 405 N. Bedford Dr. Corp., 778 F.2d 1374, 1378 (9th Cir.1985) (denial of motion to dismiss for bad faith Chapter 11 filing is not final). But see In re Christian, 804 F.2d 46 (3d Cir.1986) (denial of motion to dismiss Chapter 7 filing is final, appealable order). The parties also urge, in the alternative, that this court has jurisdiction under the marginal finality doctrine articulated by the Supreme Court in Gillespie v. United States Steel Corp., 379 U.S. 148,152-54, 85 5.Ct. 308, 310-12, 13 L.Ed.2d 199 (1964) (where cases come within “twilight zone” of finality, courts should give “practical” not “technical construction” to finality requirement, weighing costs and inconvenience of piecemeal review against potential injustice wrought by delay and salutory effect of early disposition of questions “fundamental to the further conduct of the case”). Gillespie’s admonition, made apropos of the finality requirement articulated by 28 U.S.C. section 1291, takes" } ]

[ { "docid": "22601690", "title": "", "text": "court concluded that Fuentes had made out a prima facie case of employment discrimination under the McDonnell Douglas/Burdine/Hicks line of cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); St. Mary’s Honor Ctr. v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), a conclusion which the defendants have never challenged. The court concluded, however, that the plaintiff had not adduced sufficient evidence to enable a factfinder reasonably to conclude that defendants’ numerous proffered reasons for failing to hire Fuentes were pretextual and that the real reason was discriminatory, and hence it granted summary judgment for the Commission. It is from this judgment that Fuentes appeals. We exercise plenary review. II. LEGAL ANALYSIS In a case of failure to hire or promote under Title VII, the plaintiff first must carry the initial burden under the statute of establishing a prima facie case of [unlawful] discrimination. This may be done by showing (i) that he belongs to a [protected category]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the plaintiff succeeds, the burden of production shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. The employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. See Hicks, — U.S. at -, 113 S.Ct. at 2748. The employer need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff. See Burdine, 450 U.S. at 253, 254, 256, 101 S.Ct. at 1093, 1094, 1095. Once" } ]

[ { "docid": "17727891", "title": "", "text": "the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of [retaliation], Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, [non-retaliatory] reason for the employee’s rejection” .... Third, 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 [retaliation].... The ultimate burden of persuading the trier of fact that the defendant intentionally [retaliated] against the plaintiff remains at all times with the plaintiff. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal citations omitted) (quoting McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a statutorily protected activity, (2) a reasonable employee would have found the challenged action materially adverse, and (3) there existed a causal connection between the protected activity and the materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2415-16, 165 L.Ed.2d 345 (2006); see also Scott v. Kempthorne, 191 Fed.Appx. 622, 626-27 (10th Cir.2006). The plaintiffs burden is not great: he “merely needs to establish facts adequate to permit an inference of retaliatory motive.” Forman v. Small, 271 F.3d 285, 299 (D.C.Cir.2001). If the employer successfully presents a legitimate, non-retaliatory reason for its actions, “the presumption raised by the prima facie is rebutted and drops from the case.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (internal citation omitted); Brady v. Office of the Sergeant at Arms, U.S. House of Representatives, 520 F.3d 490, 494 (D.C.Cir.2008) (noting that “the prima facie case is a largely unnecessary sideshow”). Upon such a showing by the defendant, the district court need resolve only one question: “Has the employee produced" }, { "docid": "12173168", "title": "", "text": "the opportunity to travel to the FIPSE meeting in Portugal. Plaintiff alleges that defendants withdrew the approval of her travel to the meeting and instead permitted a Caucasian male to travel to the meeting. Viewing the facts in the light most favorable to plaintiff, the court concludes that plaintiff has satisfied the fourth element of a prima facie case of discrimination with respect to the refusal of defendants to allow her to travel to Portugal. Defendants assert that Johnson was terminated from her employment with CCAC because she did not return to work after the expiration of her FMLA leave. Plaintiff argues that Caucasian employees were granted extended leave and she was not given the opportunity to extend her leave because of her race and gender. Although Johnson’s contentions are factually incorrect, as will be discussed more fully below, for purposes of summary judgment, the court will assume that plaintiff established the fourth element of a prima facie case of discrimination relating to her termination for failing to return to work. B. Burden Shifting — Defendants’ Reasons Since plaintiff presented sufficient facts to support a prima facie case — or the court assumed she did so — -for eight of the alleged discriminatory actions, the court must address the burden shifting under the McDonnell Douglas framework. Once a plaintiff has established a prima facie case the burden shifts to the defendant to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for reasons that are legitimate and nondiscriminatory. Burdine, 450 U.S. at 254, 101 S.Ct. 1089. An employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a reason that was not discriminatory for the adverse employment decision. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994); see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). It is not necessary for the defendant to persuade the court that it was actually motivated by the reason which it offers. Burdine, 450 U.S. at" }, { "docid": "17830480", "title": "", "text": "145 (D.C.Cir.2002) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999)). If the plaintiff is able to establish her prima facie case of impermissible discrimination by a preponderance of the evidence, the burden of production shifts to the employer to “articulate a legitimate, nondiscriminatory reason for its actions.” Stella, 284 F.3d at 144 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the employer is able to satisfy this burden of production, he effectively “rebuts the plaintiffs prima facie case, and the presumption of discrimination created by the prima facie case ‘drops out of the picture.’ ” Teneyck v. Omni Shoreham Hotel, 254 F.Supp.2d 17, 20-21 n. 3 (D.D.C.2003) (quoting Dunaway v. Int’l. Bhd. of Teamsters, 310 F.3d 758, 762 (D.C.Cir.2002)) (citation omitted). “The plaintiff must then demonstrate that the employer’s stated reason was pretextual and that the true reason was discrimina tory.” Stella, 284 F.3d at 144 (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). For purposes of this motion, the defendant does not challenge that the plaintiff has failed to establish a prima facie case of discrimination based on her non-selection for the Program Analyst position. Def.’s Mot. at 8. Thus, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for its challenged employment action. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To satisfy its burden, “[t]he defendant must clearly set forth, through the introduction of admissible evidence, reasons for [his] actions, which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s Honor Ctr., 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (internal quotations omitted). In satisfying the McDonnell Douglas burden of “articu-latfing] a legitimate, nondiscriminatory reason for ... action[ ]” taken, “[t]he employer’s burden ... is merely one of production.” Hammond v. Chao, 383 F.Supp.2d 47, 53 (D.D.C.2005) (citing Burdine, 450 U.S. at 254-55," }, { "docid": "18123574", "title": "", "text": "retaliatory motive played a part in the adverse employment action.” Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir.2001); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996); see Pasqualini v. MortgageIT, Inc., 2009 WL 2407651, at *11-12, 2009 U.S. Dist. LEXIS 68386, at *37 (S.D.N.Y. Aug. 5, 2009). Plaintiffs burden of proof in establishing his prima facie case is de minimis. Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 634 (2d Cir.1996); Everson v. N.Y. City Transit Auth., 2007 WL 539159, at *11, 2007 U.S. Dist. LEXIS 11251, at *35 (E.D.N.Y. Feb. 16, 2007). Demonstration of a prima facie case creates an inference of discrimination, such that the burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory rationale for the adverse action. McDonnell, 411 U.S. at 802, 93 S.Ct. 1817; Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). A defendant’s burden at this stage is, like the plaintiffs initial burden to establish a prima facie case, “not a demanding one”; [a defendant] need only offer [a lawful] explanation for the employment decision. Bickerstaff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir.1999). However, though the burden of production shifts between the parties, the burden of persuasion is always on the plaintiff to demonstrate unlawful retaliation or discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see DiCola v. SwissRe Holding N.A., Inc., 996 F.2d 30, 32 (2d Cir.1993). If a defendant articulates a legitimate rationale for the adverse action, the inference of discrimination “drops out of the picture” and the burden of production shifts back to the plaintiff to show that the defendant’s articulated reason was merely a pretext. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Burdine, 450 U.S. at 255, 101 S.Ct. 1089. “In the summary judgment context, this means that the plaintiff must establish a genuine issue of material fact either through direct, statistical or circumstantial" }, { "docid": "185110", "title": "", "text": "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.... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 (citations omitted)). Thus, the plaintiff must first establish a prima-facie case of prohibited discrimination or retaliation. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C.Cir.1998) (en banc). To demonstrate a prima-facie case of retaliation, the plaintiff must establish that: (1) the plaintiff engaged in a protected activity; (2) the employer took an adverse personnel action against her; and (3) there is a causal link between the adverse action and the protected activity. See Jones v. Washington Metro. Area Transit Auth., 205 F.3d 428, 433 (D.C.Cir.2000). If the plaintiff succeeds in making a prima-facie case, the burden shifts to the employer to articulate a non-discriminatory or non-retaliatory reason for its action. The employer’s burden, however, is merely one of production. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089. The employer “need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Id. If the employer is successful, the burden shifts back to the plaintiff to show that the defendant’s proffered reasons are pretextual and that unlawful discrimination was the real reason for the action. See McDonnell Douglas, 411 U.S. at 802-805, 93 S.Ct. 1817; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 508, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The defendant’s explanation of its legitimate reasons must be “clear and reasonably specific” so that the plaintiff is “afforded a full and fair opportunity to demonstrate pretext.” See" }, { "docid": "15096284", "title": "", "text": "qualified for the position in question; (3) that he suffered an adverse employment action; and (4) that he was replaced by a sufficiently younger person to permit an inference of age discrimination. Simpson v. Kay Jewelers, 142 F.3d 639, 644 n. 5 (3d Cir.1998); Brewer, 72 F.3d at 330 (3d Cir. 1995). “Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)(quot-ing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “To establish a presumption is to say that a finding of the predicate facts (here, the prima facie case) produces ‘a required conclusion in the absence of explanation’ (here, the finding of unlawful discrimination).” Id. Second, if the plaintiff offers sufficient proof to establish prima facie case, the employer then has the “burden of producing an explanation to rebut the prima facie case— i.e., the burden of ‘producing evidence’ that the adverse employment action was taken for a ‘legitimate nondiscriminatory reason.’ ” Id. See also Simpson, 142 F.3d 639, 644 n. 5; Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997). It is important to note, however, although the presumption of the prima facie ease shift the burden of production to the defendant “‘the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff ” St. Mary’s, 509 U.S. at 507, 113 S.Ct. 2742. Third, if the defendant satisfies its burden of production, the presumption raised by the prima facie case is rebutted and “drops from the ease,” and the plaintiff is afforded an opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. Id. at 507-08, 113 S.Ct. 2742. Plaintiff may satisfy this burden by submitting evidence from which a factfin-der could reasonably either: (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was" }, { "docid": "15512155", "title": "", "text": "U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Hollins v. Fed. Nat’l Mortgage Ass’n, 760 A.2d 563, 571 (D.C. 2000). Under that test, the plaintiff has the initial burden of establishing a prima facie case of discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Hollins, 760 A.2d at 571. If the plaintiff succeeds in proving a prima facie case, the burden then shifts to the defendant, who must “ ‘producfe] evidence’ that the adverse employment aetion[ ][was] taken Tor a legitimate, nondiscriminatory reason.’ ” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (quoting Burdine, 450 U.S. at 254, 101 S.Ct. 1089); see Hollins, 760 A.2d at 571. The defendant’s burden, at this stage, is only one of production; it “need not persuade the court that it was actually motivated by the proferred reasons.” Burdine, 450 U.S. at 254, 101 S.Ct. 1089; see Hollins, 760 A.2d at 571. Finally, if the defendant satisfies its burden, “the McDonnell Douglas framework— with its presumptions and burdens — disappear^], and the sole remaining issue [i]s discrimination vel non. ’ ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal citations and quotation marks omitted); see Hollins, 760 A.2d at 571. “At that point, to survive summary judgment the plaintiff must show that a reasonable jury could conclude. that [the employment action was taken] for a discriminatory reason.” Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C.Cir.2002). The Red Cross argues that it is entitled to summary judgment because plaintiff cannot satisfy her initial burden of establishing a prima facie case of discrimination, having failed to show that she suffered any adverse employment action, as well as her ultimate burden of proving that the Red Cross’s actions regarding her employment were taken for a discriminatory reason. (Def.’s Mot. at 15-18, 22-24; Def.’s Reply at 5-7.) The Court need not address the former argument because it is clear that even if plaintiff could establish a" }, { "docid": "18976534", "title": "", "text": "by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection” ... Third, 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 .... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal citations omitted) (quoting McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). To establish a prima facie case of sex discrimination, the plaintiff must show that (1) he is a member of a protected class; (2) he was similarly situated to an employee who was not a member of the protected class; and (3) he and the similarly situated employee were treated disparately. Holbrook v. Reno, 196 F.3d 255, 261 (D.C.Cir.1999). “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. If the plaintiff establishes a prima facie case, a presumption then arises that the employer unlawfully discriminated against the employee. Id. at 254, 101 S.Ct. 1089. To rebut this presumption, the employer must articulate a legitimate, non-discriminatory reason for its action. Id. The employer “need not persuade the court that it was actually motivated by the proffered reasons.” Id. Rather, “[t]he defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the employer successfully presents a legitimate, non-discriminatory reason for" }, { "docid": "22142588", "title": "", "text": "adverse employment action against the employee; and (3) there is a causal connection between the employee’s protected activity and the employer’s adverse employment action. See Hodgens, 144 F.3d at 161; Morgan, 108 F.3d at 1325. To demonstrate the “causal link,” the employee must demonstrate that the employer would not have taken the adverse employment action but for the employee’s protected activity. See Johnson, 91 F.3d at 939. Upon the establishment of a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. “If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted,” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and “drops from the case,” id. at 255 n. 10, 101 S.Ct. 1089; see also McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The plaintiff, then, has the opportunity to demonstrate that “the proffered reason was not the true reason for the employment decision” and that the employee’s participation in the protected activity was, in fact, the real reason for the employment action at issue. Burdine, 450 U.S. at 256, 101 S.Ct. 1089. At all times throughout this burden-shifting approach, the plaintiff retains the ultimate burden of persuasion. Id. Under the third step of the McDonnell Douglas framework, the plaintiff has the opportunity to submit evidence establishing that the employer’s proffered reasons are merely a pretext for discrimination. The plaintiff must produce evidence from which a rational fact finder could infer that the employer engaged in intentional discrimination on the basis of the plaintiffs protected trait or action. In order to meet this burden, the plaintiff must proffer significantly probative admissible evidence showing that the employer’s articulated reason for the dis charge was a pretext for discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The Supreme Court explained that “a reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was" }, { "docid": "20398735", "title": "", "text": "Bucalo had proven the elements of her prima facie cases for age discrimination and retaliation. Second, we also affirm the district court’s alternative ruling that, because the relevant decision maker was unavailable, the District was entitled to rely on circumstantial evidence regarding Lanier’s motives for not hiring Bucalo. A. Bucalo’s Prima Facie Case The Supreme Court’s decision in McDonnell Douglas “established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The purpose of the McDonnell Douglas burden-shifting framework is to “progressively ... sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). At the first stage, the plaintiff bears the burden of establishing a “prima facie” case. Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089. The requirements to establish a prima facie case are “minimal,” Hicks, 509 U.S. at 506, 113 S.Ct. 2742, and a plaintiffs burden is therefore “not onerous,” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. “Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Id. at 254, 101 S.Ct. 1089. At the second McDonnell Douglas stage, the presumption created by the prima facie case “places upon the defendant the burden of producing an explanation to rebut the prima facie case — i.e., the burden of ‘producing evidence’ that the adverse employment actions were taken ‘for a legitimate, nondiscriminatory reason.’” Hicks, 509 U.S. at 506-07, 113 S.Ct. 2742 (quoting Burdine, 450 U.S. at 254, 101 S.Ct. 1089). However, while the presumption “shifts the burden of production to the defendant, ‘[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. at 507, 113 S.Ct. 2742 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089). If the defendant satisfies its burden of production, then" }, { "docid": "22374496", "title": "", "text": "St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under this framework, a plaintiff bears the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination. St. Mary’s, 509 U.S. at 506, 113 S.Ct. 2742. Plaintiffs burden of establishing a prima facie ease is “minimal.”. Id. “Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Burdine, 450 U.S. at 254, 101 S.Ct. 1089. “To establish a ‘presumption’ is to say that a finding of the predicate fact (here, the prima facie case) produces a required conclusion in the absence of explanation.” St. Mary’s, 509 U.S. at 506, 113 S.Ct. 2742 (internal quotations and citation omitted). Once a plaintiff has established a prima facie case, the burden of production shifts to the employer to rebut this presumption by articulating a legitimate, nondiscriminatory reason for its actions. Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir.1997) (en banc) (“Fisher III”), cert. denied, — U.S. -, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). The defendant’s burden of production also is not a demanding one; she need only offer such an explanation for the employment decision. Fisher III, 114 F.3d at 1336. Although the burden of production shifts to the defendant, the ultimate burden of persuasion remains always with the plaintiff. St. Mary’s, 509 U.S. at 507, 511, 113 S.Ct. 2742; see also Norton v. Sam’s Club, 145 F.3d 114, 118 (2d Cir.) (“The thick accretion of cases interpreting this burden shifting framework should not obscure the simple principle that lies at the core of anti-discrimination cases. In these, as in most other cases, the plaintiff has the ultimate burden of persuasion.”), cert. denied, — U.S. -, 119 S.Ct. 511, 142 L.Ed.2d 424 (1998). If the defendant proffers a legitimate, nondiscriminatory reason for a challenged employment action, “the presumption raised by the prima facie case is rebutted, and drops from the" }, { "docid": "12173169", "title": "", "text": "Defendants’ Reasons Since plaintiff presented sufficient facts to support a prima facie case — or the court assumed she did so — -for eight of the alleged discriminatory actions, the court must address the burden shifting under the McDonnell Douglas framework. Once a plaintiff has established a prima facie case the burden shifts to the defendant to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for reasons that are legitimate and nondiscriminatory. Burdine, 450 U.S. at 254, 101 S.Ct. 1089. An employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a reason that was not discriminatory for the adverse employment decision. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994); see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). It is not necessary for the defendant to persuade the court that it was actually motivated by the reason which it offers. Burdine, 450 U.S. at 254, 101 S.Ct. 1089; see Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978). In this case, defendant proffered reasons with respect to each of the eight adverse actions against plaintiff. With respect to defendants’ refusal to upgrade Johnson’s position to executive director, defendants argue that CCAC wanted to wait for a short period of time before upgrading plaintiffs position. Defendants also argue that the proposed upgrade was based upon plaintiffs assumptions and not upon the then current needs of the contracts and grants department. With respect to defendants’ failure to promote plaintiff to the interim vice president position, defendants assert that plaintiff and Todd were interviewed for the position. Defendants adduced evidence that Todd received a higher interview score than plaintiff following the interview process. With respect to the dean of occupational technologies position, defendants assert that CCAC hired Lucas for the position as a result of an internal transfer and in accordance with its policy permitting internal transfers without posting a position." }, { "docid": "20491291", "title": "", "text": "305 F.3d 113, 118 (2d Cir.2002)); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir.2002) (citing Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir.2001)). If the plaintiff meets that minimal burden, the burden of production shifts to the defendant, who must come forward with a legitimate non-discriminatory reason for taking the action it took. {Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).) “The defendant’s burden of production also is not a demanding one; [he] need only offer such an explanation for the employment decision.” Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir.1999). At that point, the burden shifts back to the plaintiff to prove, with evidence, not conclusory supposition, that the defendant’s articulated rationale is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. However, “a reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (internal citation omitted) (emphasis in original). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. 24, 25, n. 2, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978)). The Court will assume that Hargett has made out a prima facie case and that defendants have articulated a legitimate non-discriminatory reason — namely, that Hargett sent inappropriate e-mails and falsified employment documents — for taking disciplinary action against Hargett. Going straight the pretext stage of the analysis, the Court must answer the question of whether Hargett has raised a triable issue of fact on the “ultimate issue” of whether his dismissal was motivated by his race. Shafrir v. Assoc., of Reform Zionists of Am., 998 F.Supp. 355, 360 (S.D.N.Y.1998). He has not. “If an" }, { "docid": "20482418", "title": "", "text": "93 S.Ct. 1817; see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the plaintiff meets the minimal burden of establishing a prima facie case, the burden of production then shifts to the defendant to offer a legitimate, non-discriminatory rationale for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817; see also Hicks, 509 U.S. at 506-07, 113 S.Ct. 2742; Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089. If the defendant articulates a legitimate reason for the action, the presumption of discrimination raised by the prima facie case drops out, and the plaintiff has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision and that the plaintiffs membership in a protected class was. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; see also Hicks, 509 U.S. at 507-08, 113 S.Ct. 2742; Burdine, 450 U.S. at 255-56, 101 S.Ct. 1089. For a racial discrimination claim under Title VII, a plaintiff must demonstrate that race was at least “a motivating factor” for the adverse employment action. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (quoting 42 U.S.C. § 2000e-2(m)) (internal quotation marks omitted). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. “Though caution must be exercised in granting summary judgment [in discrimination cases] where intent is genuinely in issue, summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact.” Chambers, 43 F.3d at 40 (internal citation omitted). 1. For purposes of this motion, the defendants concede that the plaintiff satisfies the first two elements of a prima facie case of racial discrimination: the plaintiff is African-American and thus a member of a protected class, and the plaintiff was qualified for" }, { "docid": "18986964", "title": "", "text": "burden shifts to the defendant “to articulate some legitimate, [non-retaliatory] reason for the employee’s rejection”.... Third, 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 [retaliation] .... The ultimate burden of persuading the trier of fact that the defendant intentionally [retaliated] against the plaintiff remains at all times with the plaintiff. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal citations omitted) (quoting McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a statutorily protected activity, (2) a reasonable employee would have found the challenged action materially adverse, and (3) there existed a causal connection between the protected activity and the materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). The plaintiffs burden is not great: he “merely needs to establish facts adequate to permit an inference of retaliatory motive.” Forman v. Small, 271 F.3d 285, 299 (D.C.Cir.2001). If the employer successfully presents a legitimate, non-retaliatory reason for its actions, “the presumption raised by the prima facie is rebutted and drops from the case.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (internal citation omitted); Brady v. Office of the Sergeant at Arms, U.S. House of Representatives, 520 F.3d 490, 494 (D.C.Cir.2008) (noting that “the prima facie case is a largely unnecessary sideshow”). Upon such a showing by the defendant, the district court need resolve only one question: “Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-[retaliatory] reason was not the actual reason and that the employer intentionally [retaliated] against the employee on the basis of race, color," }, { "docid": "14565442", "title": "", "text": "using circumstantial evidence, the Court must apply the specialized burden-shifting analysis announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), whereby a plaintiff may establish an employment discrimination claim using circumstantial evidence. Meeks v. Computer Assoc. Int'l 15 F.3d 1013, 1018-19 (11th Cir.1994); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1184 (11th Cir.1984); see Peters v. Community Action Committee, Inc. of Chambers-Tallapoosa-Coosa, 977 F.Supp. 1428, 1433-34 (M.D.Ala.1997) (applying McDonnell Douglas burden-shifting analysis to FMLA retaliation claim). The burden-shifting analysis first requires the plaintiff to establish a prima facie case of the defendant’s retaliatory motive. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 2742, 125 L.Ed.2d 407 (1993). After the plaintiff establishes a prima facie case, a presumption of retaliatory intent arises, and the burden of production next shifts to the defendant to articulate legitimate, nondiscriminatory reasons for the adverse employment action. Hicks, 113 S.Ct. at 2742; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Lewis, 908 F.Supp. at 951. Once the defendant articulates legitimate, nondiscriminatory reasons for its actions, “ ‘the presumption created by plaintiffs prima facie case drops from the picture’ and ‘the -factual inquiry proceeds to a new level of specificity.’ ” Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 255 & n. 10, 101 S.Ct. 1089); see also Trotter v. Board of Trustees of Univ. of Ala., 91 F.3d 1449, 1455 (11th Cir.1996) (describing third step of burden-shifting analysis). “[T]he plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were .not the real reasons for the adverse employment decision.” Combs, 106 F.3d at 1520. a. Plaintiffs Prima Facie Case In order to establish a prima facie case of FMLA retaliation, Plaintiff must show that: (1) Plaintiff exercised her rights guaranteed by the FMLA; (2) Plaintiff was subjected to an adverse employment action; and (3) a causal link" }, { "docid": "17126235", "title": "", "text": "of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the- burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection”-;... Third, 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 trae reasons, but were a pretext for discrimination_ The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff, Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal citations omitted) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). To establish a prima facie case of race discrimination under Title VII, an employee must show: (1) that he is a member of a protected class; (2) that he suffered an adverse personnel action;’ and (3) the unfavorable action gives rise to an inference of discrimination. Royall v. Nat'l Ass’n of Letter Carriers, AFL-CIO, 548 F.3d 137, 144 (D.C.Cir.2008). “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. If the employee establishes his prima facie case, a presumption then arises that his employer unlawfully discriminated against him. Id. at 254, 101 S.Ct. 1089. To rebut this presumption, the employer must articulate a legitimate, nondiscriminatory reason for its action. Id, The employer “need not persuade the court that' it was actually motivated by the proffered reasons.” Id. Rather, “[t]he [employer] must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the- employment action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (quoting Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089) (internal quotations omitted, emphasis in original)." }, { "docid": "22941212", "title": "", "text": "evidence, a prima facie case of retaliation. Once established, the burden shifts to TAP to rebut the presumption of retaliation by articulating non-retaliatory reasons for its actions. Cf. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If TAP meets its burden of production, the presumption raised by the prima facie case is rebutted and “drops from the case,” id. at 255 n. 10, 101 S.Ct. 1089, and Dowe bears the ultimate burden of proving that she has been the victim of retaliation, see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). On appeal, Dowe first contends that she established a prima facie case of retaliation under Title VII. To establish a prima facie case of retaliation under Title VII, a plaintiff is required to prove (1) that she engaged in a protected activity; (2) that an adverse employment action was taken against her; and (3) that there was a causal connection between the first two elements. See Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, — U.S. -, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996). It is undisputed that Dowe engaged in protected activity when she filed her discrimination . charge with the EEOC. See, e.g., Carter v. Ball, 33 F.3d 450, 460 (4th Cir.1994) (filing a complaint with the EEOC is a protected activity). It is also undisputed that an adverse employment action was taken against Dowe. See, e.g., Hart sell v. Duplex Products, Inc., 123 F.3d 766, 775 (4th Cir.1997) (recognizing that discharge is an adverse employment action). To survive summary judgment, therefore, Dowe must have evidence from which a reasonable factfinder could conclude that a causal connection exists between the protected activity and the adverse action. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (holding that summary judgment is appropriate “if the evidence is such that a reasonable jury could [not] return a verdict for the nonmoving party”); see also Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th" }, { "docid": "15978816", "title": "", "text": "v. Green, 411 U.S. 792, 793, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff bears the initial burden of proving, by the preponderance of the evidence, every element of a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; McMillan v. Examination Mgmt. Servs., Inc., No. 94-2229, 1996 WL 551725, at *7 (S.D.N.Y. Sept. 27, 1996). If he meets that burden (which has been described as minimal), the burden of production shifts to the defendant, who must come forward with a legitimate non-discriminatory reason for taking the action it took. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). However, “The defendant’s burden of production also is not a demanding one; [he] need only offer [ ] an explanation for the employment decision.” Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir.1999). Once the defendant has come forward with a legitimate business reason for taking the adverse employment action, the burden shifts back to the plaintiff to prove—with hard evidence, not conclusory supposition—that the defendant’s articulated rationale is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. “A reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515,113 5. Ct. 2742, 125 L.Ed.2d 407 (1993) (internal citation omitted) (emphasis in original). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. 24, 25, n. 2, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978).) Defendant has moved for summary judgment dismissing all of Schanfield’s personal claims. The Court will consider that motion before addressing the issue of class certification. II. Schanfield’s Individual Claims Schanfield asserts claims of discrimination and retaliation under virtually every applicable civil rights statute: 42 U.S.C. § 1981," }, { "docid": "5269770", "title": "", "text": "defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection”.... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal citations omitted) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). To establish a prima facie case of discrimination, the plaintiff must show that (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999); Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002). “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. If the plaintiff establishes a prima facie case, a presumption then arises that the employer unlawfully discriminated against the employee. Id. at 254, 101 S.Ct. 1089. To rebut this presumption, the employer must articulate a legitimate, non-discriminatory reason for its action. Id. The employer “need not persuade the court that it was actually motivated by the proffered reasons.” Id. Rather, “[t]he defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the employer successfully presents a legitimate, non-discriminatory reason for its actions, “the McDonnell Douglas framework—with its presumptions and burdens—disappears, and the sole remaining issue is discrimination vel non.” Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003) (internal citations omitted). At this point, to survive summary judgment, the plaintiff" } ]

[ { "docid": "19164973", "title": "", "text": "be required to perform the work. Compl. ¶ 53. PSS notes that the proposed price was more than 40% lower than the incumbent’s (PSS) pricing, Compl. ¶ 41, 60% below the IGCE, PL Reply 12, and included discounts for some labor categories of up to 54% off CWS’s GSA rate. PI. Reply 12. As a result, the plaintiff speculates, CWS would have been required to reduce current staffing levels by an equivalent 40%, or to reduce salaries. Compl. ¶ 53. The failure to recognize this risk, according to the plaintiff, makes the agency’s Price evaluation arbitrary and capricious. In response, the government and CWS contend that the agency conducted a proper price realism analysis. Relying on Ceres Environmental Services, Inc. v. United States, 97 Fed.Cl. 277, 303 (2011), the government argues that an agency has broad discretion to conduct a price realism analysis and to assess the potential risks associated \"with a proposed price. Gov. Mot. 22. The government notes that in this case, the SSA expressly concluded that despite the variances between each offeror’s proposed labor mix, the overall hours and skill mixes were determined to be “more realistic than the hours estimated in the ICGE.” Gov. Mot. 23-24 (quoting AR 1551). CWS also argues that the SSA, rather than ignoring the significance of the discount offered by CWS, specifically considered the issue and consulted a variety of relevant sources before concluding that CWS’s discount was fair and reasonable. Intervenor Mot. 11 (citing AR 1552). The court agrees with the government and defendant-intervenor that the plaintiff has failed to show that the SSA’s price evaluation was arbitrary, capricious, or an abuse of discretion. To the contrary, the record shows that the agency was attuned to the potential risk of an unrealistically low price proposal from CWS, and actively sought clarification to resolve that risk during discussions. As CWS points out, the SSA consulted multiple sources of evidence to determine whether CWS’s discounts were fair and reasonable, including escalation rates within GSA FSS IT-70 contracts, the U.S. Department of Labor National Compensation Survey, and statistics for the relevant St. Louis" } ]

[ { "docid": "19030693", "title": "", "text": "reasonably, the Court will not disturb the agency’s findings. Generally, price realism is not considered in fixed price conti-acts because the contractor assumes the full risk and responsibility that the work can be performed for the price offered. Int’l Outsourcing Servs., LLC v. United States, 69 Fed.Cl. 40, 47 n. 7 (2005). An agency may, at its discretion, perform a price realism analysis in the solicitation of fixed price proposals. Id. If an agency commits itself to a particular methodology in the solicitation, it must follow that methodology. Afghan Am. Army Servs. Corp. v. United States, 90 Fed.Cl. 341, 359 (2009). The Court’s duty is to determine if the agency’s price realism analysis was consistent with the evaluation criteria set forth in the solicitation. Ala. Aircraft Indus., Inc. Birmingham, 586 F.3d at 1375-76. The Court reviews the price realism analysis to determine if it is rational. Halter Marine, Inc. v. United States, 56 Fed.Cl. 144, 172 (2003) (citations omitted). In order to be rational, it is not necessary to show that the price realism analysis was conducted with “impeccable vigor.” Id. Rather, the analysis must show that the agency took into account the information available and did not make irrational assumptions or critical miscalculations. Id. The Court finds that CENTCOM rationally applied the price realism criteria to SOSi’s proposal. While the solicitation commits the agency to determine if a price is unrealistically low, the solicitation does not commit CENTCOM to any specific price analysis technique. The solicitation says that the price analysis may include one of three techniques: (1) a comparison with the other offerors’ proposed prices, (2) a comparison with other contract prices for similar services, or (3) a comparison with the IGE. AR 270-71. Because it uses the word “may,” the solicitation does not require the agency to use one of the listed techniques or any particular technique at all. Furthermore, even though the solicitation suggests techniques on how to conduct a price analysis, the solicitation states no requirements on when and how a price may be found to be unrealistically low. Under the solicitation, even if there" }, { "docid": "20349000", "title": "", "text": "All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 663 n. 11 (2010); Ralph C. Nash & John Cibinic, Price Realism Analysis: A Tricky Issue, 12 No. 7 Nash & Cibinic Report ¶ 40 (July 1998). In any event, Erinys Iraq determined that a comparison of proposed prices from multiple competing offerors, in which all proposals satisfied the government’s expressed requirements and offered reasonable prices, was sufficient for a rational price reasonableness analysis under 48 C.F.R. § 15.404-1(b)(2)(i). Erinys Iraq, 78 Fed.Cl. at 531. In the instant procurement, multiple offerors competed independently with their price proposals, and the Contract Specialist compared offerors within the competitive range to an IGCE based on historical costs. This price reasonableness analysis satisfied the requirements of the FAR. Plaintiff expressly “does not argue that USCG acted unreasonably by not conducting a price realism analysis.” Pl.’s Reply at 20. But in objecting that the USCG “fails to address how a company lacking the organization, experience, and resources of the incumbent could offer a price [XX]% lower than the incumbent,” id. at 21, plaintiff is in essence challenging the absence of price realism analysis. Tech Systems has not, however, demonstrated that a price realism analysis was required for this type of fixed-price contract. “For an IDIQ contract contemplating fixed-price task orders, the ‘real ism’ of offerors’ proposed prices would not ordinarily be considered, because the fixed-price task order puts the risk of underpriced offers on the contractor.” Afghan American Army Servs. Corp. v. United States, 90 Fed.Cl. 341, 356 (2009) (citing Femme Comp. Inc. v. United States, 83 Fed.Cl. 704, 755 (2008)). Though the FAR requires cost realism analysis for cost-reimbursement contracts, it allows cost realism analysis for competitive fixed-price contracts only in exceptional cases, “when new requirements may not be fully understood by competing offerors, there are quality concerns, or past experience indicates that contractors’ proposed costs have resulted in quality or service shortfalls.” 48 C.F.R. § 15.404-l(d)(3). Plaintiff, however, does not point to evidence in the administrative record of quality concerns or a past experience of service shortfalls to establish the exceptional circumstances that could" }, { "docid": "20348997", "title": "", "text": "and fails to do so prior to the close of the bidding process,” plaintiff waived its ability to raise the same objection in a post-award bid protest. Blue & Gold, Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed.Cir.2007). Our court has consistently applied this equitable bar to a disappointed offeror’s untimely challenge to a solicitation. Linc Gov’t Servs., LLC v. United States, 96 Fed.Cl. 672, 697-98 (2010). Finally, plaintiff argues that the USCG acted arbitrarily and capriciously when it did not examine the reasonableness of CHC’s low price proposal. Pl.’s Br. at 59-60. Court House Cleaners’ offered price of $2,097,582.00 was 32.83% lower than the IGCE and [XX]% lower than Tech Systems’ proposal. Pl.’s Br. at 60; see AR at 641. The USCG’s Price Evaluation Report had stated that the “[p]riee analysis shall be done to establish reasonableness of proposals under a best value trade off source selection.” AR at 640. Yet, plaintiff argues, the report itself contained no analysis of the reasonableness of CHC’s price. Pl.’s Br. at 60. In Tech Systems’ view, the Coast Guard erred by not examining whether CHC’s price was reasonable when it was 32.83% lower than the IGCE and lacked the “staffing, equipment, management or organization” of the incumbent. Id. In the Price Evaluation Report, the Contract Specialist compared the total price of each offeror’s proposal to price data from the IGCE. AR at 640. This IGCE was developed in part from plaintiffs historical costs as the incumbent contractor. AR at 641. The Contract Specialist determined that both CHC and Tech Systems had competitively offered pricing that were below the IGCE. Id. In contrast, Ben-Mar’s price was 17% higher than the IGCE, and the Contract Specialist found that it was not reasonable. Id. In contending that CHC’s offer may be “an unreasonable price that reflects a misunderstanding of the contract requirements,” Pl.’s Reply at 21, plaintiff conflates price realism and price reasonableness analyses. According to plaintiff, “the purpose of a price analysis ... is ‘to ensure that an offeror understands the solicitation requirements and actually can perform those requirements prescribed in the" }, { "docid": "7122836", "title": "", "text": "OMV Med., Inc. v. United States, 219 F.3d 1337, 1343-44 (Fed.Cir.2000))). . Weeks Marine offers an alternative formulation of bid protest standing applicable in a pre-award protest of the terms of a solicitation. 575 F.3d at 1362 (requiring that the protestor demonstrate a non-trivial competitive injury, rather than a substantial chance of contract award). Here, DMS is not challenging the terms of the solicitation, but the proposed award to He & I. . Price realism is differentiated from price reasonableness. A price realism analysis \"is analysis to determine if the offeror's proposed prices are unrealistically low.\" Ralph C. Nash & John Cibinic, Price Realism Analysis: A Tricky Issue, 12 No. 7 Nash & Cibinic Rep. ¶ 40 (July 1988) (citing 48 C.F.R. § 15.404-1 (d)(1), (3)). The evaluation of price reasonableness, on the other hand, has the aim of preventing the government from paying too high a price for a particular contract. Serco Inc. v. United States, 81 Fed.Cl. 463, 494 n. 48 (2008) (citation omitted). . In addition to cases decided by the Federal Circuit and this court, GAO bid protests discuss many of the claims asserted here, and, in many instances, provide a valuable perspective. See Planning Research Corp. v. United States, 971 F.2d 736, 740 (Fed.Cir.1992) (stating that while Comptroller General \"decisions are not binding authority, they may nevertheless be considered because of the Comptroller General's experience in dealing with bid protests” (citing United States v. Lockheed Corp., 817 F.2d 1565, 1567 (Fed.Cir.1987))). . Cost reasonableness and cost realism are distinguishable, but both of these analytical frameworks critically examine the cost elements of a price proposal. See 48 C.F.R. § 15.404-1 (a)(4) (“Cost analysis may ... be used ... to determine cost reasonableness or cost realism.”). Plaintiff references FAR provisions that address both cost reasonableness, see Pl.’s Mot. at 8 (citing 48 C.F.R. § 15.404 — 1 (c)(1)), and cost realism, see Pl.’s Mot. at 11 (citing 48 C.F.R. § 15.404-1(d)(1)). Plaintiff's main concern, however, is that the Army’s price realism analysis did not incorporate an adequate cost realism analysis, so as to avoid unrealistically low bids." }, { "docid": "19247362", "title": "", "text": "Scis. Corp. v. United States, 73 Fed.Cl. 70, 102 (2006); PharmChem, Inc., B-291725.3 et al., 2003 WL 21982424, at *6 (Comp.Gen. July 22, 2003) (explaining that price realism analysis can be reasonably conducted by “evaluating] each line item and the total price for each proposal and comparing] them with [the] independent estimate and with other offerors’ prices”). An agency’s price realism analysis lacks a rational basis if the contracting agency made “irrational assumptions or critical miscalculations.” OMV Med., Inc. v. United States, 219 F.3d 1337, 1344 (Fed.Cir.2000). 1. Contemporaneous Records are Sufficient to Demonstrate the Basis for the IGCE “[A]n IG[C]E need not be supported with exhaustive details....” Nutech Laundry & Textile, Inc. v. United States, 56 Fed. Cl. 588, 594 (2003). Nonetheless, “the agency must be able to demonstrate the basis for the estimate.” Id. In Nutech, the court found that the documentation of the IGCE was insufficient: The record contains a one-page IG[C]E that is completely lacking in any notes or back-up documentation. It is accompanied neither by a description of cost figures upon which it is based nor the basis for arriving at the costs listed. A page with numbers and lacking any references is not an adequate IG[C]E upon which to base a price decision. Id. In contrast, in a different case, the court found adequate a ten-page IGCE that was “extensive and detailed.” Process Control Techs. v. United States, 53 Fed.Cl. 71, 77 (2002). Here, contemporaneous records relating to the IGCE identified a number of “assumptions” on which the IGCE was based. See AR Tab 1, at 2-3. The assumptions stated that applicable labor rates were developed based on “the simple average of a random sampling of 10 contractors’ GSA Schedule 70 Government Site rates ... discounted by twenty percent to simulate competition.” Id. The sample included seven large business contractors and three small business contractors. Id. The assumptions stated that the IGCE did not develop separate labor rates for specific types of small businesses. Id. When a labor category was not represented in the ten contractors’ rates, DVA used “judgment to select a ‘best" }, { "docid": "15970425", "title": "", "text": "this CLIN is unrealistic and demonstrates a lack of understanding of the contract requirement. AR Tab 41 at 2842. Similarly, in her analysis of [ ] proposal, the SSA noted that both its unit prices and total proposed prices were unrealistic because “[t]heir proposed prices do not include Iraq taxes on wages for Iraqi staff.” Id. at 2851. In both instances prices were deemed unrealistic when, upon an analysis of the unit prices and the total unit prices, the SSA determined that prices were not “realistic for the work to be performed,” or did not “reflect a clear understanding of the requirements,” or were not “consistent with the unique methods of performance and materials described in the offeror’s proposal.” AR Tab 4 at 139. By contrast, the SSA determined that Aegis’s, ArmorGroup’s, and plaintiffs prices were all realistic. See AR Tab 41 at 2804, 2812, 2835. Plaintiff asserts that the JCC-I/A’s determination of price realism was improper because it did not engage in a comparison of Aegis’s or ArmorGroup’s offered unit prices to the unit prices in the Indepen dent Government Estimate (the “IGE”). Instead, the JCC-I/A multiplied the quantities contained in the IGE by the monthly unit prices proposed by each offeror on each CLIN. According to plaintiff, this shows that the record lacked a meaningful price realism analysis. Plaintiffs operating premise that a particular analysis was required is not correct. The FAR does not require agencies to use IGE estimates to determine price realism at all; in fact, it does not direct agencies to use any particular tool in a price realism analysis. Instead, the FAR suggests that “independent government cost estimates” may be used in a price analysis comparison to determine price reasonableness, not price realism. FAR 15.404-1(b)(2)(v). In any case, consistent with the latitude accorded the agency requesting proposals, the JCCI/A structured its solicitation requirements such that offerors would provide sufficient information for the JCC-l/A to render a rational price realism analysis. See Labat-Anderson, 50 Fed.Cl. at 106 (“[T]he nature and extent of an agency’s price realism analysis are matters within the agency’s discretion.”). Similarly, the" }, { "docid": "19247364", "title": "", "text": "fit’ GSA rate for the missing PWS categories.” Id. Plaintiff has not disputed that DVA was permitted to use an IGCE in conducting its price realism analysis. See Mem. of P. & A. in Supp. of PL’s Mot. for J. on AR 43-46. However, plaintiff has disputed the sufficiency of the contemporaneous documentation demonstrating the basis of the IGCE. See id. Plaintiff claims the records lack (1) the method employed to select the ten “random” contractors, (2) the names of the chosen ten contractors, (3) the actual calculation of the rates, (4) the identity of the specific rates that were developed by DVA’s “judgment,” (5) the significance in the IGCE of the rates calculated based on “judgment,” (6) the method employed to calculate the rates based on “judgment,” and (7) the comparison of the ten contractors’ rates to the IGCE labor categories. See Mem. of P. & A. in Supp. of PL’s Mot. for J. on AR 45-47; PL’s Reply to Def.’s Resp. to Mot. for J. on AR 2-5. Although additional records would be helpful in understanding the development of the IGCE, additional records are not necessary to effectively review the development and application of the IGCE. Cf. MED Trends, Inc. v. United States, 102 Fed.Cl. 1, 7 (2011) (“DOL prepared the IGCE ‘using historical data from previous similar contracts.’ The plaintiff has not demonstrated, or even alleged, that any of these particular figures were unreasonable or inaccurate. Nor has it pointed to any authority for the proposition that the agency must provide a more detailed explanation of how its IGCE was formulated.”) (citation omitted). The records relating to the IGCE here are unlike those in Nutech where the IGCE was only supported by “[a] page with numbers and lacking any references.” Nutech Laundry & Textile, Inc., 56 Fed.Cl. at 594. In fact, in this case, the records’ detail and length far surpass the records supporting the IGCE that the court deemed adequate in Process Control Technologies. See Process Control Techs., 53 Fed.Cl. at 77. Accordingly, the Court finds that the contemporaneous documentation is sufficient to permit the Court" }, { "docid": "17734530", "title": "", "text": "company has struggled with meeting performance objectives and managing personnel. Id. These comments and the “Limited Confidence” rating clearly were based on the “Dr. Zieger matter” as it arose in the course of OCI’s performance on the pilot project. With respect to price, the Source Selection Plan established a Price Evaluation Team (PET) charged with providing a Price Analysis to the SSAC and to the Source Selection Authority. AR 5546, 5571. The PET evaluated each offeror’s TCLP and determined “whether the Offerors have completed all aspects of the price proposal properly and whether the amounts listed in the price proposal are calculated accurately.” AR 5547. The price evaluation process did not employ adjectival ratings. Id. The steps involved included a comparison of each offeror’s total price with other offeror’s proposed prices, comparison with the agency’s own Independent Government Cost Estimate (IGCE), review of each proposal for completeness, reasonableness, and realism, and consideration of any other significant items of concern. AR 5548. OCI’s proposal was judged complete, but that “additional notes which could not be interpreted were included on the worksheets and the offeror added additional Emergency Affiliate Provider (EAP) costs to the firm-fixed price for DPH services.” AR 5555. The PET did not adjudge OCI’s proposal as “fair and reasonable when compared to other prices received” in response to the RFP. It noted in particular that OCRs TCLP of $265,619,111.06 was the “highest proposed”: 37.36% above the government estimate and 51.17% above the average of all the offerors. Id. OCI’s prices were not determined to be unrealistic, but that its “extremely high price and labor rates may reflect an unclear understanding of the requirement.” Id. The SSAC reported that OCI in effect had taken “exception” to the Government’s price model, but that the PET had “verified the propriety of all formulas in the submitted price model and found that the calculated price of $265,619,111.06 was determined on the same basis as all other offerors’ TCLP and therefore the only valid figure for evaluation.” AR 5701. Furthermore, the SSAC advised, albeit merely summarily, that “if the Government were to consider all" }, { "docid": "20348998", "title": "", "text": "view, the Coast Guard erred by not examining whether CHC’s price was reasonable when it was 32.83% lower than the IGCE and lacked the “staffing, equipment, management or organization” of the incumbent. Id. In the Price Evaluation Report, the Contract Specialist compared the total price of each offeror’s proposal to price data from the IGCE. AR at 640. This IGCE was developed in part from plaintiffs historical costs as the incumbent contractor. AR at 641. The Contract Specialist determined that both CHC and Tech Systems had competitively offered pricing that were below the IGCE. Id. In contrast, Ben-Mar’s price was 17% higher than the IGCE, and the Contract Specialist found that it was not reasonable. Id. In contending that CHC’s offer may be “an unreasonable price that reflects a misunderstanding of the contract requirements,” Pl.’s Reply at 21, plaintiff conflates price realism and price reasonableness analyses. According to plaintiff, “the purpose of a price analysis ... is ‘to ensure that an offeror understands the solicitation requirements and actually can perform those requirements prescribed in the [RFP] in the manner that it proposes.’ ” Pl.’s Br. at 59-60 (quoting Erinys Iraq Ltd. v. United States, 78 Fed.Cl. 518, 531 (2007)). But plaintiffs quotation, from Erinys Iraq Ltd. v. United States, concerned price realism, not price reasonableness. See 78 Fed.Cl. at 531. And while the quoted sentence did conclude with the phrase “the purpose of price reasonableness analysis is to ensure that the offeror’s price is not unreasonably high or unreasonably low,” id., this was because the REP at issue specifically called for a “reasonableness” evaluation of price under which “[t]he offeror’s proposed prices [were to] be evaluated to determine any unreasonably high or low prices in relation to the offeror’s technical proposal.” Erinys Iraq, 78 Fed.Cl. at 523. The tailoring services RFP does not contain similar language. See AR at 103. When such an idiosyncratic definition of “reasonableness” is not in use, it is understood to mean the verification that an offered price is not too high, in contrast with “realism,” which concerns proposed prices that are too low. See DMS" }, { "docid": "19247363", "title": "", "text": "upon which it is based nor the basis for arriving at the costs listed. A page with numbers and lacking any references is not an adequate IG[C]E upon which to base a price decision. Id. In contrast, in a different case, the court found adequate a ten-page IGCE that was “extensive and detailed.” Process Control Techs. v. United States, 53 Fed.Cl. 71, 77 (2002). Here, contemporaneous records relating to the IGCE identified a number of “assumptions” on which the IGCE was based. See AR Tab 1, at 2-3. The assumptions stated that applicable labor rates were developed based on “the simple average of a random sampling of 10 contractors’ GSA Schedule 70 Government Site rates ... discounted by twenty percent to simulate competition.” Id. The sample included seven large business contractors and three small business contractors. Id. The assumptions stated that the IGCE did not develop separate labor rates for specific types of small businesses. Id. When a labor category was not represented in the ten contractors’ rates, DVA used “judgment to select a ‘best fit’ GSA rate for the missing PWS categories.” Id. Plaintiff has not disputed that DVA was permitted to use an IGCE in conducting its price realism analysis. See Mem. of P. & A. in Supp. of PL’s Mot. for J. on AR 43-46. However, plaintiff has disputed the sufficiency of the contemporaneous documentation demonstrating the basis of the IGCE. See id. Plaintiff claims the records lack (1) the method employed to select the ten “random” contractors, (2) the names of the chosen ten contractors, (3) the actual calculation of the rates, (4) the identity of the specific rates that were developed by DVA’s “judgment,” (5) the significance in the IGCE of the rates calculated based on “judgment,” (6) the method employed to calculate the rates based on “judgment,” and (7) the comparison of the ten contractors’ rates to the IGCE labor categories. See Mem. of P. & A. in Supp. of PL’s Mot. for J. on AR 45-47; PL’s Reply to Def.’s Resp. to Mot. for J. on AR 2-5. Although additional records would be" }, { "docid": "19050926", "title": "", "text": "DeCA “enjoy[s] broad discretion in conducting its price realism analysis.” DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 665 (2010) (stating that when the solicitation “is silent as to the precise methodology of the price realism analysis contemplated by the [agency], the [agency] enjoy[s] broad discretion in conducting its price realism analysis”). Based on an analysis of elements in Nay-yarsons’s proposal, the CO determined that Nayyarsons would be able to offer the greatest percentage of patron savings: Continued patron savings will be upheld by offering daily, weekly, monthly, and sea sonal promotions. Other promotions may include promotions forthcoming by vendors or on quantity purchases and cooking classes. The end result is that through monitoring product mix, price comparisons and offering specials, Nayyar Sons can offer to the patron the highest possible savings against the local market. AR Tab 11, at 2653-54 (emphasis added). The foregoing determination, based on relevant aspects of Nayyarsons’s proposal that Nayyarsons “can offer ... the highest possible savings” to the patron, AR Tab 11, at 2653-54, cannot be viewed as irrational. Because the Solicitation does not prescribe the precise methodology required to conduct the price realism analysis, and because the CO’s statement confirms that DeCA did indeed conduct a price realism analysis, this court has no reason to disregard DeCA’s.determi-nation that Nayyarsons proposed a realistic percentage of patron savings. Even if the CO did not adequately document its price realism analysis, there is no evidence in the Administrative Record suggesting that Nayyarsons’s proposed percentage of patron savings was unrealistic. Indeed, the other offerors in the competitive range proposed similar percentages of patron savings, ranging from 26.70%-45%. See AR Tab 11, at 2658.3-.4. With respect to defendant’s price realism analysis, plaintiff cannot demonstrate “that there was a ‘substantial chance’ it would have been awarded the contract but for” DeCA’s error. See Weeks Marine, 79 Fed.Cl. at 35 (quoting Bannum, 404 F.3d at 1353). D. Permanent Injunctive Relief Not Warranted To obtain a permanent injunction, a plaintiff must succeed on the merits and show by a preponderance of the evidence: “(1) that it will suffer irreparable" }, { "docid": "7122795", "title": "", "text": "each offeror’s proposed cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique methods of performance and materials described in the offeror’s technical proposal. 48 C.F.R. § 15.404 — 1(d)(1). Cost realism analysis is a technique that is applied to cost-reimbursement contracts. See 48 C.F.R. § 15.404-1(d)(2) (“Cost realism analyses shall be performed on cost-reimbursement contracts to determine the probable cost of performance for each offeror.”). In what the FAR describes as “exceptional cases,” cost realism analyses may also be used in fixed-price contract procurements: Cost realism analyses may also be used on competitive fixed-price incentive contracts or, in exceptional eases, on other competitive fixed-priee-type contracts when new requirements may not be fully understood by competing offerors, there are quality concerns, or past experience indicates that contractors proposed costs have resulted in quality or service shortfalls. Results of the analysis may be used in performance risk assessments and responsibility determinations. However, proposals shall be evaluated using the criteria in the solicitation, and the offered prices shall not be adjusted as a result of the analysis. 48 C.F.R. § 15.404-1(d)(3). A “price realism analysis,” a term not employed in the FAR, examines the performance risk of proposals in a fixed-price contract procurement, with particular attention to the risk of low-priced proposals, and may include the cost realism analysis referenced in FAR 15.404-l(d). See, e.g., Erinys Iraq Ltd. v. United States, 78 Fed.Cl. 518, 530 (2007) (noting that “the FAR is silent on how to conduct a price realism analysis”) (citing 48 C.F.R. § 15.404-1); Int’l Outsourcing Servs., L.L. C. v. United States, 69 Fed.Cl. 40, 47 n. 7 (2005) (“Various commentators have recognized that the FAR provisions discussing “cost realism” provide guidance in conducting price realism analyses, where the offeror’s proposed prices are unrealistically low.”) (citation omitted); Labat-Anderson Inc. v. United States, 50 Fed.Cl. 99, 106 (2001) (discussing price realism and citing FAR 15.404-l(d)(3) as permitting the “use of cost realism analyses in fixed-price contracts in exceptional cases”). 2. Caselaw" }, { "docid": "7122838", "title": "", "text": "Compare Pl.'s Mot. at 12 (describing the solicitation's price realism analysis as a determination of whether \"the price proposal is inconsistent with the technical approach” and is thus \"unrealistic”) with FAR 15.404 — 1 (d)(1) (stating that \"[c]ost realism analysis is the process of independently reviewing and evaluating specific elements of each of-feror's proposed cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed\"). To the extent that the solicitation term \"cost reasonableness” is applicable to the price realism analysis conducted in this procurement, the court agrees with plaintiff that cost realism, not cost reasonableness, is the more pertinent analytical framework. See AR at 1044 (FLA report) (discussing the price realism of proposals); id. at 2714 (FLA report) (discussing the cost realism of proposals); id. at 2588 (Mr. [J’s Final Price Proposals Evaluation) (examining the performance risk of each offeror's most significant price coefficient subfactor to confirm that the offerors' total price coefficients were realistic). . Intervenor-defendant argues that no price realism analysis of offers was required by the language of the solicitation. The government disagrees with intervenor-defendant on this point and sides with plaintiff, asserting that a price realism analysis was called for by the solicitation. However, even if the court agreed with He & I’s argument, the Army conducted and relied upon a price realism analysis of proposals, and that analysis must have had a rational basis to survive this court's review. . One of plaintiff’s arguments in this regard is that He & I’s price coefficients did not include enough of the indirect cost subfactors listed in Section L of the solicitation. See Pl.'s Mot. at 16 (stating that “He & I failed to include in its coefficient each cost element required by the Solicitation”). The court does not read the solicitation to require more subfactor detail than He & I included in its price coefficient. See AR at 311-12 (noting that a price coefficient represents a contractor’s indirect costs). Plaintiff's suggestion that the solicitation required more subfactor detail than He & I provided is not consistent with either" }, { "docid": "20348992", "title": "", "text": "demonstrate that Tech Systems’ price was considered a “weakness” by the agency, let alone a “significant weakness.” Without showing how its price proposal was a significant weakness, plaintiff cannot establish that discussions on price were necessary under the FAR. In arguing that a discussion concerning price was required because it was the “sole basis for not selecting TSI,” Pl.’s Br. at 58, plaintiff ignores the distinction between a “weakness” in the proposal that would risk unsuccessful contract performance and ai’eas in which competitors have a mere advantage. The contracting officer “is not required to discuss every area where the proposal could be improved.” 48 C.F.R. § 15.306(d)(3). On the subject of price, the FAR permits but does not require discussions with offerors. 48 C.F.R. § 15.306(e)(3). The USCG may inform an offeror “that its cost or price is considered to be too high or unrealistic,” but the agency “has no responsibility to inform an offeror that its cost or price is high where the offeror’s cost or price is not considered excessive or unreasonable.” Banknote Corp., 56 Fed.Cl. at 385. The SSP provided for a price proposal evaluation by comparing offerors’ proposals to price data from the IGCE. AR at 256. In the Price Evaluation Report, the Contract Specialist considered the plaintiffs offered price to be “approximately [XX]% less than the IGCE”; he further stated that “[t]here is no reason to take exception to this competitively offered pricing.” AR at 641. The Price Evaluation Report did not label plaintiffs price proposal as excessive, unreasonable, or a significant weakness. Based on the price evaluation, the agency was not required by the FAR to conduct discussions on price with plaintiff. Plaintiff further alleges that the discussions were “patently misleading” because the agency asked for more technical detail instead of discussing price. Pl.’s Br. At 56. According to plaintiff, the agency declined to discuss price when plaintiff had “specifically inquired whether its price was competitive.” Id. at 56 n. 12; see Compl. ¶ 29. Furthermore, plaintiff argues, the discussions with it were misleading because the agency did not allow it to address the" }, { "docid": "20348999", "title": "", "text": "[RFP] in the manner that it proposes.’ ” Pl.’s Br. at 59-60 (quoting Erinys Iraq Ltd. v. United States, 78 Fed.Cl. 518, 531 (2007)). But plaintiffs quotation, from Erinys Iraq Ltd. v. United States, concerned price realism, not price reasonableness. See 78 Fed.Cl. at 531. And while the quoted sentence did conclude with the phrase “the purpose of price reasonableness analysis is to ensure that the offeror’s price is not unreasonably high or unreasonably low,” id., this was because the REP at issue specifically called for a “reasonableness” evaluation of price under which “[t]he offeror’s proposed prices [were to] be evaluated to determine any unreasonably high or low prices in relation to the offeror’s technical proposal.” Erinys Iraq, 78 Fed.Cl. at 523. The tailoring services RFP does not contain similar language. See AR at 103. When such an idiosyncratic definition of “reasonableness” is not in use, it is understood to mean the verification that an offered price is not too high, in contrast with “realism,” which concerns proposed prices that are too low. See DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 663 n. 11 (2010); Ralph C. Nash & John Cibinic, Price Realism Analysis: A Tricky Issue, 12 No. 7 Nash & Cibinic Report ¶ 40 (July 1998). In any event, Erinys Iraq determined that a comparison of proposed prices from multiple competing offerors, in which all proposals satisfied the government’s expressed requirements and offered reasonable prices, was sufficient for a rational price reasonableness analysis under 48 C.F.R. § 15.404-1(b)(2)(i). Erinys Iraq, 78 Fed.Cl. at 531. In the instant procurement, multiple offerors competed independently with their price proposals, and the Contract Specialist compared offerors within the competitive range to an IGCE based on historical costs. This price reasonableness analysis satisfied the requirements of the FAR. Plaintiff expressly “does not argue that USCG acted unreasonably by not conducting a price realism analysis.” Pl.’s Reply at 20. But in objecting that the USCG “fails to address how a company lacking the organization, experience, and resources of the incumbent could offer a price [XX]% lower than the incumbent,” id. at" }, { "docid": "19030694", "title": "", "text": "was conducted with “impeccable vigor.” Id. Rather, the analysis must show that the agency took into account the information available and did not make irrational assumptions or critical miscalculations. Id. The Court finds that CENTCOM rationally applied the price realism criteria to SOSi’s proposal. While the solicitation commits the agency to determine if a price is unrealistically low, the solicitation does not commit CENTCOM to any specific price analysis technique. The solicitation says that the price analysis may include one of three techniques: (1) a comparison with the other offerors’ proposed prices, (2) a comparison with other contract prices for similar services, or (3) a comparison with the IGE. AR 270-71. Because it uses the word “may,” the solicitation does not require the agency to use one of the listed techniques or any particular technique at all. Furthermore, even though the solicitation suggests techniques on how to conduct a price analysis, the solicitation states no requirements on when and how a price may be found to be unrealistically low. Under the solicitation, even if there is a difference between the proposal price and the price to which it is compared, nothing prevents the contracting officer from considering other factors in determining if a price is reasonable. In his award decision document, the contracting officer compared SOSi’s price to the IGE and the other offer-ors’ proposed prices, but considering all the factors, found SOSi’s price realistic. The contracting officer determined that all the price proposals were lower than the IGE. Id. The lower prices were explained by changes in the statement of work from the old contract, specifically that a greater amount of work could be performed in the continental United States. Id. The contracting officer also noted the maturity of the effort and the reduced risk in the environment where the work would be performed. Id. In the corrective action effort, the contracting officer made a second price realism analysis. AR 627-29. Again, the contracts ing officer acknowledged that SOSi’s price was significantly lower than the IGE and the next lowest, technically acceptable price, but determined that SOSi’s price was" }, { "docid": "20348996", "title": "", "text": "have been alerted by the RFP that “price could become a determining factor” when proposals were technically equal. AR at 101. Though Technical Capability and Relevant Past Performance were more important than price when combined, the RFP also said that price could be the deciding factor when two proposals were technically equal. Id. In making the source selection decision, the Contracting Officer noted that CHC and Tech Systems were equal in technical capability and past performance, so CHC offered the best value with its lower price. AR at 665. This best value determination was consistent with the RFP. While it appears to be the case that the expression of the relative weight of price and non-price factors in the Solicitation did not conform to the required language from the FAR, as it failed to specify whether these were significantly more or less important or approximately equal, see supra note 7, this constitutes a patent ambiguity. As “a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process,” plaintiff waived its ability to raise the same objection in a post-award bid protest. Blue & Gold, Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed.Cir.2007). Our court has consistently applied this equitable bar to a disappointed offeror’s untimely challenge to a solicitation. Linc Gov’t Servs., LLC v. United States, 96 Fed.Cl. 672, 697-98 (2010). Finally, plaintiff argues that the USCG acted arbitrarily and capriciously when it did not examine the reasonableness of CHC’s low price proposal. Pl.’s Br. at 59-60. Court House Cleaners’ offered price of $2,097,582.00 was 32.83% lower than the IGCE and [XX]% lower than Tech Systems’ proposal. Pl.’s Br. at 60; see AR at 641. The USCG’s Price Evaluation Report had stated that the “[p]riee analysis shall be done to establish reasonableness of proposals under a best value trade off source selection.” AR at 640. Yet, plaintiff argues, the report itself contained no analysis of the reasonableness of CHC’s price. Pl.’s Br. at 60. In Tech Systems’" }, { "docid": "19050925", "title": "", "text": "done in accordance with the Solicitation, see AR Tab 2, at 29 (“Historical deli sales cited in the solicitation for the applicable cluster x 80%____”), is necessarily more favorable to the government. Accordingly, plaintiff cannot demonstrate “that there was a ‘substantial chance’ it would have been awarded the contract but for” DeCA’s error. See Weeks Marine, 79 Fed.Cl. at 35 (quoting Bannum, 404 F.3d at 1353). Plaintiff also argues that DeCA did not document its “evaluated price” analysis. PL’s Mot. 24. Defendant argues that DeCA rationally documented its evaluation of price proposals. Def.’s Resp. 32. DeCA documented its “evaluated price” analysis in the Price Spreadsheet. See AR Tab 11, at 2653, 2658.3-5. It cannot be said that DeCA’s documentation of its “evaluated price” analysis in the Price Spreadsheet lacked a rational basis. See Impresa, 238 F.3d at 1332. Plaintiff also contends that “DeCA [arbitrarily and [cjapriciously [flailed to [ejvaluate [pjriee [r]ealism.” PL’s Mot. 25. The Solicitation does not describe the methodology required to conduct the price realism analysis. See AR Tab 2, at 29. Accordingly, DeCA “enjoy[s] broad discretion in conducting its price realism analysis.” DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 665 (2010) (stating that when the solicitation “is silent as to the precise methodology of the price realism analysis contemplated by the [agency], the [agency] enjoy[s] broad discretion in conducting its price realism analysis”). Based on an analysis of elements in Nay-yarsons’s proposal, the CO determined that Nayyarsons would be able to offer the greatest percentage of patron savings: Continued patron savings will be upheld by offering daily, weekly, monthly, and sea sonal promotions. Other promotions may include promotions forthcoming by vendors or on quantity purchases and cooking classes. The end result is that through monitoring product mix, price comparisons and offering specials, Nayyar Sons can offer to the patron the highest possible savings against the local market. AR Tab 11, at 2653-54 (emphasis added). The foregoing determination, based on relevant aspects of Nayyarsons’s proposal that Nayyarsons “can offer ... the highest possible savings” to the patron, AR Tab 11, at 2653-54, cannot be viewed" }, { "docid": "19247361", "title": "", "text": "CHE Consulting, Inc. v. United States, 78 Fed.Cl. 380, 387 (2007) (quoting A & D Fire Prot. v. United States, 72 Fed.Cl. at 131). A. The Independent Government Cost Estimate Was Adequately Documented in Contemporaneous Records and Was Rational The parties agree that the management sub-factor of the technical factor of the Solicitation called for a price realism analysis. See Mem. of P. & A. in Supp. of Pl.’s Mot. for J. on AR 43 (citing AR Tab 3, at 252); Def.’s Mot. for J. on AR 13-14. The FAR does not mandate any particular method of conducting a price realism analysis and “the nature and extent of a price realism analysis, as well as an assessment of potential risk associated with a proposed price, are generally within the sound exercise of the agency’s discretion.” Pemco Aeroplex, Inc., B-310372.3, 2008 WL 2684841, at *5 (Comp. Gen. June 13, 2008). The agency’s “discretion is even more pronounced when the Solicitation is silent regarding the methodology to be used in conducting a ‘price realism analysis.’ ” Info. Scis. Corp. v. United States, 73 Fed.Cl. 70, 102 (2006); PharmChem, Inc., B-291725.3 et al., 2003 WL 21982424, at *6 (Comp.Gen. July 22, 2003) (explaining that price realism analysis can be reasonably conducted by “evaluating] each line item and the total price for each proposal and comparing] them with [the] independent estimate and with other offerors’ prices”). An agency’s price realism analysis lacks a rational basis if the contracting agency made “irrational assumptions or critical miscalculations.” OMV Med., Inc. v. United States, 219 F.3d 1337, 1344 (Fed.Cir.2000). 1. Contemporaneous Records are Sufficient to Demonstrate the Basis for the IGCE “[A]n IG[C]E need not be supported with exhaustive details....” Nutech Laundry & Textile, Inc. v. United States, 56 Fed. Cl. 588, 594 (2003). Nonetheless, “the agency must be able to demonstrate the basis for the estimate.” Id. In Nutech, the court found that the documentation of the IGCE was insufficient: The record contains a one-page IG[C]E that is completely lacking in any notes or back-up documentation. It is accompanied neither by a description of cost figures" }, { "docid": "7122837", "title": "", "text": "Circuit and this court, GAO bid protests discuss many of the claims asserted here, and, in many instances, provide a valuable perspective. See Planning Research Corp. v. United States, 971 F.2d 736, 740 (Fed.Cir.1992) (stating that while Comptroller General \"decisions are not binding authority, they may nevertheless be considered because of the Comptroller General's experience in dealing with bid protests” (citing United States v. Lockheed Corp., 817 F.2d 1565, 1567 (Fed.Cir.1987))). . Cost reasonableness and cost realism are distinguishable, but both of these analytical frameworks critically examine the cost elements of a price proposal. See 48 C.F.R. § 15.404-1 (a)(4) (“Cost analysis may ... be used ... to determine cost reasonableness or cost realism.”). Plaintiff references FAR provisions that address both cost reasonableness, see Pl.’s Mot. at 8 (citing 48 C.F.R. § 15.404 — 1 (c)(1)), and cost realism, see Pl.’s Mot. at 11 (citing 48 C.F.R. § 15.404-1(d)(1)). Plaintiff's main concern, however, is that the Army’s price realism analysis did not incorporate an adequate cost realism analysis, so as to avoid unrealistically low bids. Compare Pl.'s Mot. at 12 (describing the solicitation's price realism analysis as a determination of whether \"the price proposal is inconsistent with the technical approach” and is thus \"unrealistic”) with FAR 15.404 — 1 (d)(1) (stating that \"[c]ost realism analysis is the process of independently reviewing and evaluating specific elements of each of-feror's proposed cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed\"). To the extent that the solicitation term \"cost reasonableness” is applicable to the price realism analysis conducted in this procurement, the court agrees with plaintiff that cost realism, not cost reasonableness, is the more pertinent analytical framework. See AR at 1044 (FLA report) (discussing the price realism of proposals); id. at 2714 (FLA report) (discussing the cost realism of proposals); id. at 2588 (Mr. [J’s Final Price Proposals Evaluation) (examining the performance risk of each offeror's most significant price coefficient subfactor to confirm that the offerors' total price coefficients were realistic). . Intervenor-defendant argues that no price realism analysis of offers was required" } ]

[ { "docid": "2931107", "title": "", "text": "or an additional 2% penalty. JUDGMENT AFFIRMED. . This decision was summarily affirmed as to DeMartino’s partner in McDonnell v. Commissioner, 862 F.2d 308 (3d Cir.1988). . Section 6621 provides that: In the case of interest payable under section 6601 with respect to any substantial underpayment attributable to tax motivated transactions, the rate of interest established under this section shall be 120 percent of the underpayment rate established [elsewhere in section 6621]. 26 U.S.C. § 6621(c)(1) (Supp. IV 1986) (as amended in 1986); see also 26 Ú.S.C. § 6621(d)(1) (Supp. Ill 1985) (substantially identical subsection that replaced subsection (c)(1) in 1984). Since 1984, it has also provided that: For purposes of this subsection, the term \"tax motivated transaction\" means— (i) any valuation overstatement (within the meaning of section 6659(c)), (ii) any loss disallowed by reason of section 465(a) and any credit disallowed under section 46(c)(8), (iii) any straddle (as defined in section 1092(c) without regard to subsections (d) and (e) of section 1092), and (iv) any use of an accounting method specified in regulations prescribed by the Secretary as a use which may result in a substantial distortion of income for any period. 26 U.S.C. § 6621(d)(3)(A) (Supp. Ill 1985). In 1986, Congress added a fifth definition of the term “tax motivated transaction” in a \"Clarification of Treatment of Sham or Fraudulent Transactions.” The term now is also defined to mean \"(v) any sham or fraudulent transaction.” 26 U.S.C. § 6621(c)(3)(A) (Supp. IV 1986). The amendment adding subsection (v) \"shall apply to interest accruing after December 31, 1984; except that such amendment shall not apply in the case of any underpayment with respect to which there was a final court decision before the date of the enactment [of the 1986 Act].” Pub.L. No. 99-514, § 1535(b), 100 Stat. 2085, 2750 (1986). See section C of this opinion for a discussion of the effect of this amendment. . Section 6621 imposes additional interest for a straddle “as defined in section 1092(c).” 26 U.S.C. § 6621(c)(3)(A)(iii) (Supp. IV 1986). Section 1092(c) provides in pertinent part: Straddle Defined For purposes of this section—" } ]

[ { "docid": "11964470", "title": "", "text": "he admitted the tax shelters were shams. III. CONCLUSION For the reasons stated, we AFFIRM the district court’s grant of summary judgment upholding the deficiencies and penalties, and REVERSE the district court’s denial of summary judgment holding that I.R.C. § 6621(c) requires an inquiry into the taxpayer’s motive. . Prior to 1981, I.R.C. § 6653 simply imposed a five percent penalty for a taxpayer’s negligent underpayment. See Internal Revenue Code of 1954, Pub.L. No. 83-591, § 6653, 68A Stat. 1, 822. In 1981, Congress amended the statute to impose a two-part penalty for negligent underpayment. See Economic Recovery Tax Act of 1981, Pub.L. No. 97-34, § 722(b)(1), 95 Stat. 172, 342-43. Accordingly, the IRS applied the unamended version solely to the 1980 tax year. . After the 1981 amendment, I.R.C. § 6653(a)(1) imposed a five percent penalty for negligent underpayment. See Economic Recovery Tax Act of 1981, Pub.L. No. 97-34, § 722(b)(1), 95 Stat. 172, 342-43 (amended 1986). . After the 1981 amendment, I.R.C. § 6653(a)(2) imposed an additional penalty equal to fifty percent of the collectible interest on the portion of the underpayment resulting from a taxpayer’s negligence. See id. (amended 1986). . I.R.C. § 6659 (West 1989) (repealed 1989) imposed a penalty for valuation overstatements. During the proceedings below, however, the Government conceded that the IRS incorrectly assessed the I.R.C. § 6659 penalties. Consequently, the district court ordered the amounts paid be refunded. . Congress repealed I.R.C. § 6621(c) in 1989, effective for returns filed after December 31, 1989. See Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 7721(b), 103 Stat. 2106, 2399, 2400. I.R.C. § 6621(c) remains applicable to interest accruing on unpaid taxes after December 31, 1984. See Deficit Reduction Act of 1984, Pub.L. No. 98-369, § 144(c), 98 Stat. 494, 684; Tax Reform Act of 1986, Pub.L. No. 99-514, § 1535(b), 100 Stat.2085, 2750. . It is unclear to this Court whether Thomas appeals the district court's decision regarding the negligence penalties. Nevertheless, the district court correctly concluded it lacked jurisdiction to consider a refund of the negligence penalties because Thomas failed to" }, { "docid": "21184191", "title": "", "text": "or negative answer and does not lend itself to an intermediate resolution. In the circumstances, the court holds that the defective notice provided by the IRS to Mr. and Mrs. McGann was not sufficient to trigger the six-months’ limitations period set out in I.R.C. § 6230(c)(2)(A) for filing refund claims. Thus, the third predicate for finding that the claim filed by Mr. and Mrs. McGann with the IRS was time-barred also has not been met. The defective notice therefore provides an ’ independent and alternative ground upon which the government’s motion to dismiss must be denied. CONCLUSION For the reasons set forth, the government’s motion to dismiss is DENIED. It is so ORDERED. . On July 18, 1984, as part of the-Tax Reform Act of 1984, Pub.L. No. 98-369, 98 Stat. 494, Congress amended the Internal Revenue Code to provide that interest owed to the government accruing after December 31, 1984, relating to \"any substantial underpayment attributable to tax motivated transactions” would be at this higher interest rate. See Pub.L. No. 98-369, § 144, 98 Stat. at 682-84 (initially codified at I.R.C. § 6621(d), later redesignated as § 6621(c) by the Tax Reform Act of 1986, Pub.L. No. 99-514, § 1511(c)(1)(A), 100 Stat.2085, 2744, and then subsequently repealed by Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 7721(b), 103 Stat. 2106, 2399). The 1984 Act identified certain \"tax motived transactions” and authorized the Treasury Secretary to identify additional \"tax motivated transactions\" by'regulation. See Pub.L. No. 98-369, § 144(a), 98 Stat. at 683. This added-interest provision was both prospective and retroactive in nature: the higher rate was applicable to interest accruing after December 31, 1984, attributable to an underpayment of tax due because of a \"tax motivated transaction” whether or not the \"tax motivated transaction\" occurred before or after enactment. See generally Demos v. Commissioner, 68 T.C.M. (CCH) 209, 1994 WL 387138 (1994); see also Kennedy v. Commissioner, 876 F.2d 1251, 1256 (6th Cir. 1989); De Martino v. Commissioner, 862 F.2d 400, 408-09 (2d Cir.1988). On December 19, 1989, Congress passed the Omnibus Budget Reconciliation Act of 1989, Pub.L." }, { "docid": "839825", "title": "", "text": "of tax due because of a “tax motivated transaction” whether or not the “tax motivated transaction” occurred before or after enactment. See generally Demos v. Commissioner, 68 T.C.M. (CCH) 209 (1994); see also Kennedy v. Commissioner, 876 F.2d 1251, 1256 (6th Cir.1989); DeMartino v. Commissioner, 862 F.2d 400, 408-09 (2d Cir.1988). On December 19, 1989, Congress passed the Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, 103 Stat. 2106, Section 7721(b) of which repealed I.R.C. § 6621(c). See 103 Stat. at 2399. However, this repeal only applied to “returns the due date for which (determined without regard to extensions) is after December 31, 1989.” Pub.L. No. 101-239, § 7721(c), 103 Stat. at 2400; see also Weiner, 389 F.3d at 159 n. 7. As a consequence, notwithstanding the repeal, Congress provided that interest at the higher “tax motivated transaction” rate would continue to accrue after 1989 if the underlying “tax motivated transaction” occurred in a tax year for which the initial due date for the tax return was on or before December 31,1989. Interest at the higher rate under former Section 6621(c) was reserved for any “substantial underpayment attributable to tax motivated transactions.” I.R.C. § 6621(c)(1) (1988). Classification of an activity as a tax- motivated transaction is not an issue unique to partners, partnerships, or TEFRA. See, e.g., Leslie v. Commissioner, 146 F.3d 643, 645, 648 (9th Cir.1998) (gold futures straddle transactions by individual taxpayers). Former Section 6621(c) defined “the term ‘tax motivated transaction’ ” as meaning: (i) any valuation overstatement (within the meaning of section 6659(c)), (ii) any loss disallowed by reason of section 465(a) and any credit disallowed under section 46(c)(8), (iii) any straddle (as defined in section 1092(c) without regard to subsections (d) and (e) of section 1092), (iv) any use of an accounting method specified in regulations prescribed by the Secretary as a use which may result in a substantial distortion of income for any period, and (v) any sham or fraudulent transaction. I.R.C. § 6621(c)(3)(A)(i)-(v) (1988). The former section also gave the Secretary authority to specify other types of transactions that would fit within this" }, { "docid": "16234004", "title": "", "text": "distortion of [paxtnership income and/or expense],” as described in I.R.C. § 6621(c)(3)(A)(iv). The decisions also determined that the provisions of I.R.C. § 6229 did not bar the assessment of deficiencies in income tax attributable to the adjustments to partnership items. . With this result, we join a \"legion” of other courts who, while adopting different rationales, have found that this limitations claim cannot be raised in a partner-level proceeding. Keener, 76 Fed.Cl. at 463 (citing Weiner, 389 F.3d at 156-57; Davenport Recycling Assocs. v. Comm'r of Internal Revenue, 220 F.3d 1255, 1260 (11th Cir.2000); Williams v. Unit ed States, 165 F.3d 30 (6th Cir.1998) (Table); Kaplan v. United States, 133 F.3d 469, 473 (7th Cir.1998); Crowell v. Comm’r of Internal Revenue, 102 T.C. 683, 693, 1994 WL 151303 (1994)); see also Chimblo v. Comm’r of Internal Revenue, 177 F.3d 119, 125 (2d Cir.1999). . Indeed, as noted above, the Tax Court, when dealing with Taxpayers' partner-level suit, already addressed this limitations claim, albeit after these particular partners settled with the IRS. Agri-Cal Venture Assocs. v. Comm’r of Internal Revenue, 80 T.C.M.(CCH) 295 (2000). . Former § 6621(c), originally codified I.R.C. § 6621(d), was added to the tax code in 1984 and applies to interest accruing after December 31, 1984. Tax Reform Act of 1984, Pub.L. No. 98-369, Div. A, § 144, 98 Stat. 494 (adding provision to tax code); Tax Reform Act of 1986, Pub.L. No. 99-514, § 1511(c)(1), 100 Stat. 2085 (amending and recodifying). Although this version of § 6621(c) was repealed in 1990, it remains applicable for the tax years at issue in this case. Omnibus Budget Reconciliation Act of 1990, Pub.L. No. 101-508, § 11341, 104 Stat. 1388 (specifying amendment and effective date). . The Government identifies numerous circuit courts in accord. See, e.g., Nault v. United States, 517 F.3d 2, 8 (1st Cir.2008) (noting that the court lacked jurisdiction \"to determine whether the relevant transactions actually did have economic substance”); RJT Invs. X v. Comm’r of Internal Revenue, 491 F.3d 732, 736-38 (8th Cir.2007) (status of partnership as a sham is a partnership item); River City" }, { "docid": "839823", "title": "", "text": "either party.” Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505. A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, a court must resolve all issues in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If no rational trier of fact could find for the non-moving party, summary judgment may be appropriate. Id. at 587, 106 S.Ct. 1348. When considering cross-motions for summary judgment, courts evaluate each motion on its own merits, and denial of both motions is appropriate if genuine disputes over material facts exist. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed.Cir.1987). Here, in ruling on the parties’ cross-motions for summary judgment, the court has the benefit of the parties’ extensive stipulations of fact. ANALYSIS A Provisions of Former § 6621(c) and Implementing Regulation Former Section 6621(c) has its roots in the Tax Reform Act of 1984, Pub.L. No. 98-369, 98 Stat. 494. As part of that Act, on July 18, 1984, Congress amended the Internal Revenue Code to provide that interest owed to the government accruing after December 31, 1984, relating to “any substantial underpayment attributable to tax motivated transactions” would be at a higher interest rate. See Pub.L. No. 98-369, § 144, 98 Stat. at 682-84 (initially codified at I.R.C. § 6621(d), later redesignated as § 6621(c) by the Tax Reform Act of 1986, Pub.L. No. 99-514, § 1511(c)(1)(A), 100 Stat. 2085, 2744, and then subsequently repealed by the Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 7721(b), 103 Stat. 2106, 2395-98). The 1984 Act identified certain “tax motived transactions” and authorized the Treasury Secretary to identify additional “tax motivated transactions” by regulation. See Pub.L. No. 98-369, § 144(a), 98 Stat. at 683. The provision for enhanced interest was both prospective and retroactive in nature: the higher rate was applicable to interest accruing after December 31, 1984, attributable to an underpayment" }, { "docid": "21184192", "title": "", "text": "Stat. at 682-84 (initially codified at I.R.C. § 6621(d), later redesignated as § 6621(c) by the Tax Reform Act of 1986, Pub.L. No. 99-514, § 1511(c)(1)(A), 100 Stat.2085, 2744, and then subsequently repealed by Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 7721(b), 103 Stat. 2106, 2399). The 1984 Act identified certain \"tax motived transactions” and authorized the Treasury Secretary to identify additional \"tax motivated transactions\" by'regulation. See Pub.L. No. 98-369, § 144(a), 98 Stat. at 683. This added-interest provision was both prospective and retroactive in nature: the higher rate was applicable to interest accruing after December 31, 1984, attributable to an underpayment of tax due because of a \"tax motivated transaction” whether or not the \"tax motivated transaction\" occurred before or after enactment. See generally Demos v. Commissioner, 68 T.C.M. (CCH) 209, 1994 WL 387138 (1994); see also Kennedy v. Commissioner, 876 F.2d 1251, 1256 (6th Cir. 1989); De Martino v. Commissioner, 862 F.2d 400, 408-09 (2d Cir.1988). On December 19, 1989, Congress passed the Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, 103 Stat. 2106, Section 7721(b) of which repealed I.R.C. § 6621(c). See 103 Stat. at 2399. However, this repeal only applied to \"returns the due date for which (determined without regard to extensions) is after December 31, 1989.” Pub.L. No. 101-239, § 7721(c), 103 Stat. at 2400; see also Weiner v. United States, 389 F.3d 152, 159 n. 7 (5th Cir. 2004). As a consequence, notwithstanding the repeal, Congress provided that interest at the higher \"tax motivated transaction” rate would continue to accrue after 1989 if the underlying \"tax motivated transaction” occurred in a tax year for which the initial due date for the tax return was on or before December 31, 1989. . The recitations that follow do not constitute findings of fact by this court. Rather, the recited factual elements have been taken from the par ties’ filings and are either undisputed, except where a factual controversy is explicitly noted, or are alleged and assumed to be true for purposes of the pending motions. . But see Pls.’ Supp., Ex. A" }, { "docid": "14997994", "title": "", "text": "the years in question. . Mr. Anderson testified that he thought GD & L would help him lease the containers even after its 35-month obligation ended, yet GD & L's own materials showed that GD & L had virtually no experience in the container business and no track record at leasing containers. . For a description of the recognized container registration services and a discussion of the importance of registration in the container industry, see Amsler v. Commissioner, 66 T.C.M. (CCH) 8, 10, 1993 WL 244909 (1993). . The penalty was originally 10 percent but was increased to 25 percent in 1986. See Pub.L. No. 99-509, § 8002(a), 100 Stat. 1874, 1951 (1986). The increased rate applied to penalties assessed after October 21, 1986. See id. § 8002(b), 100 Stat. at 1951. The Andersons’ penalty was assessed in 1988. Section 6661 has been repealed with respect to returns due after December 31, 1989. See Pub.L. No. 101-239, § 7721(c)(2) & (d), 103 Stat. 2106, 2399, 2400 (1989). Accuracy-related and fraud penalties are now governed by sections 6662 through 6664 of the code. . Section 6661(c) authorized the Secretary of the Treasury to waive the addition if the taxpayer showed that there was reasonable cause for the understatement and that the taxpayer acted in good faith. The Andersons also suggest that they had reasonable cause for the understatement and acted in good faith. However, the Andersons have not shown that they ever asked the Secretary to waive the addition to tax. Moreover, the statute makes waiver of the penalty discretionary with the Secretary, see Mauerman v. Commissioner, 22 F.3d 1001, 1004 (10th Cir.1994), and the Andersons have not argued, much less shown, that the Secretary abused his discretion in not waiving the penalty. The Secretary does not abuse his discretion by refusing to grant a waiver that was never requested. . Subsection (c) was originally added to section 6621 as subsection (d) in 1984 and redesignated (c) in 1986. Increased interest under section 6621(c) applies only to interest accruing after December 31, 1984. See Pub.L. No. 98-369, § 144(c), 98 Stat." }, { "docid": "11964471", "title": "", "text": "the collectible interest on the portion of the underpayment resulting from a taxpayer’s negligence. See id. (amended 1986). . I.R.C. § 6659 (West 1989) (repealed 1989) imposed a penalty for valuation overstatements. During the proceedings below, however, the Government conceded that the IRS incorrectly assessed the I.R.C. § 6659 penalties. Consequently, the district court ordered the amounts paid be refunded. . Congress repealed I.R.C. § 6621(c) in 1989, effective for returns filed after December 31, 1989. See Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 7721(b), 103 Stat. 2106, 2399, 2400. I.R.C. § 6621(c) remains applicable to interest accruing on unpaid taxes after December 31, 1984. See Deficit Reduction Act of 1984, Pub.L. No. 98-369, § 144(c), 98 Stat. 494, 684; Tax Reform Act of 1986, Pub.L. No. 99-514, § 1535(b), 100 Stat.2085, 2750. . It is unclear to this Court whether Thomas appeals the district court's decision regarding the negligence penalties. Nevertheless, the district court correctly concluded it lacked jurisdiction to consider a refund of the negligence penalties because Thomas failed to challenge the penalties in any of his administrative claims with the IRS. See Estate of Bird v. United States, 534 F.2d 1214, 1219 (6th Cir.1976) (\"Numerous cases sustain the principle that the grounds on which a claim for a tax refund is made must be specifically set forth in the claim for refund itself, otherwise the ■court in a refund action is without jurisdiction to consider them.”). . Thomas does not appeal the district court's determination regarding the IRS' refusal to abate interest. . Thomas asserts that the \"1981 Form 843” purportedly mailed on July 1, 1994 was received by the IRS because he attached a copy of it with the \"1981 Form 843” filed with the IRS in November of 1995. Even accepting Thomas’ strained argument, the date of delivery imputed to the \"1981 Form 843” allegedly mailed on July 1, 1994 would be the postmark date on the envelope sent in November of 1995. See I.R.C. § 7502(a)(1). Thus, the filing would be an untimely administrative claim under I.R.C. § 6511(a) because it" }, { "docid": "15191046", "title": "", "text": "a substantial underpayment attributable to tax-motivated transactions. Accordingly, we hold that this Court does not have jurisdiction under section 6621(c)(4) in the setting presented in this case to determine whether additional interest applies because the deficiency before the Court is not a substantial underpayment attributable to tax-motivated transactions. The jurisdictional provisions of the Internal Revenue Code do not give this Court jurisdiction to determine whether TEFRA partners, such as petitioners, are liable for additional interest. We recognize that section 6621(c) was repealed by section 7721(b) of the Omnibus Budget Reconciliation Act of 1989, Pub. L. 101-239, 103 Stat. 2106, 2399. Consequently, Congress would need to retroactively amend the jurisdictional provisions to resolve this problem. Accordingly, respondent’s motion to dismiss for lack of jurisdiction as to section 6621(c) will be granted. To reflect the foregoing, An appropriate order will be issued. Reviewed by the Court. Chabot, Parker, Hamblen, Cohen, Swift, Jacobs, Gerber, Wright, Wells, Ruwe, Whalen, and HALPERN, JJ., agree with the majority. 50% of the interest payable under sec. 6601 with respect to the portion of the underpayment attributable to negligence PARR, J., dissenting: I respectfully dissent. I think section 6621(c)(4), while perhaps inartfully drafted, was intended to broaden the jurisdiction of this Court to determine, under all circumstances, whether additional interest under section 6621(c) applies. I believe Congress intended the term “deficiency” in section 6230(a)(2)(A) to be read broadly to include partnership “adjustments” flowing through to the individual partners. I would not limit the. meaning of “deficiency” to the narrow technical meaning of section 6211(a). The function of the courts in interpreting taxing statutes is to “construe the language so as to give effect to the intent of Congress.” United States v. American Trucking Association, Inc., 310 U.S. 534, 542-545 (1940). See Polyak v. Commissioner, 94 T.C. 337, 340-341 (1990); Martin Fireproofing v. Commissioner, 92 T.C. 1173, 1185 (1989); Cook v. Commissioner, 90 T.C. 975, 984 (1988). As the Supreme Court stated in Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 93-94 (1934): The intention of the lawmaker controls in the construction of taxing acts as it does in" }, { "docid": "4856065", "title": "", "text": "violates the ex post facto clause. Petitioners further contend in their brief that no section 6661 addition is applicable to Arcelo because “the new law [Omnibus Budget Reconciliation Act of 1989] repealed the 25 percent penalty provided by the 1986 law and did not leave any penalty to replace it for a return filed before January 1, 1990.” Section 7721, Omnibus Budget Reconciliation Act of 1989 (OBRA 89), Pub. L. 101-239, 103 Stat. 2395, repealed section 6661 and recodified the substantial understatement addition as section 6662(b)(2). Specifically, section 7721(c)(2) of OBRA 89 repealed Code section 6661. Section 7721(d) of OBRA 89 made the repeal applicable to returns the due date for which (determined without regard to extensions) is after December 31, 1989. By its terms, OBRA 89 only repealed section 6661 for returns due after December 31, 1989. Thus, OBRA 89 did not repeal section 6661 for returns due prior to January 1, 1990. Sec. 7721(d), OBRA 89, Pub. L. 101-239, 103 Stat. 2400. Petitioners, nonetheless, argue that no section 6661 addition applies “to assessments of 1982 taxes where such assessments are made in 1990 or after” because “the 1986 amendment no longer applies either, as the entire Section 6661 was repealed in 1989.” Petitioners note that “This argument was raised and rejected in Vessio v. Commissioner; T.C. Memo. 1990-565 (Oct. 29, 1990).” In Vessio v. Commissioner, supra, the taxpayer argued that “If OBRA 1986 repealed TEFRA 1982’s version of section 6661, then, by the same reasoning, the Budget Reconciliation Act of 1989 had to have repealed OBRA 1986 for pre-OBRA 1986 tax returns, such as these.” In Vessio v. Commissioner, supra, we stated: OBRA ’86 repealed the provisions of TEFRA with respect to returns due prior to OBRA ’86’s enactment because Congress provided that the 25 percent rate imposed by OBRA ’86 would apply to assessments made after October 21, 1986, even where such assessments relate to returns due prior to such date, provided such returns were due after December 31, 1982. See Karpa v. Commissioner, 909 F.2d 784 (4th Cir. 1990), affg. a Memorandum Opinion of this Court." }, { "docid": "4856064", "title": "", "text": "liabilities. See Johannessen v. United States, 225 U.S. 227, 242 (1912). Applying these principles, the Supreme Court rejected an ex post facto challenge to Connecticut’s retrospective application of an addition to tax in Bankers Trust Co. v. Blodgett, supra. In Karpa v. Commissioner, 909 F.2d 784 (4th Cir. 1990), affg. T.C. Memo. 1989-535, a taxpayer challenged the imposition of the addition to tax under section 6661(a) at the 25-percent rate on the ground that the increased rate was an ex post facto law. The Fourth Circuit held that the increased addition imposed under former section 6661, as amended by OBRA 86, is a civil sanction. Karpa v. Commissioner, supra at 788. Thus, “Under Bankers’ Trust, 260 U.S. at 652, * * * retroactive application of a civil tax penalty,” such as the increased additions to tax under section 6661(a), “does not offend the ex post facto clause.” Karpa v. Commissioner, supra at 788. Accordingly, we reject petitioners’ argument that the application of the 25-percent rate under section 6661(a) to the underpayment in tax for 1982 violates the ex post facto clause. Petitioners further contend in their brief that no section 6661 addition is applicable to Arcelo because “the new law [Omnibus Budget Reconciliation Act of 1989] repealed the 25 percent penalty provided by the 1986 law and did not leave any penalty to replace it for a return filed before January 1, 1990.” Section 7721, Omnibus Budget Reconciliation Act of 1989 (OBRA 89), Pub. L. 101-239, 103 Stat. 2395, repealed section 6661 and recodified the substantial understatement addition as section 6662(b)(2). Specifically, section 7721(c)(2) of OBRA 89 repealed Code section 6661. Section 7721(d) of OBRA 89 made the repeal applicable to returns the due date for which (determined without regard to extensions) is after December 31, 1989. By its terms, OBRA 89 only repealed section 6661 for returns due after December 31, 1989. Thus, OBRA 89 did not repeal section 6661 for returns due prior to January 1, 1990. Sec. 7721(d), OBRA 89, Pub. L. 101-239, 103 Stat. 2400. Petitioners, nonetheless, argue that no section 6661 addition applies “to assessments" }, { "docid": "839824", "title": "", "text": "in the Tax Reform Act of 1984, Pub.L. No. 98-369, 98 Stat. 494. As part of that Act, on July 18, 1984, Congress amended the Internal Revenue Code to provide that interest owed to the government accruing after December 31, 1984, relating to “any substantial underpayment attributable to tax motivated transactions” would be at a higher interest rate. See Pub.L. No. 98-369, § 144, 98 Stat. at 682-84 (initially codified at I.R.C. § 6621(d), later redesignated as § 6621(c) by the Tax Reform Act of 1986, Pub.L. No. 99-514, § 1511(c)(1)(A), 100 Stat. 2085, 2744, and then subsequently repealed by the Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 7721(b), 103 Stat. 2106, 2395-98). The 1984 Act identified certain “tax motived transactions” and authorized the Treasury Secretary to identify additional “tax motivated transactions” by regulation. See Pub.L. No. 98-369, § 144(a), 98 Stat. at 683. The provision for enhanced interest was both prospective and retroactive in nature: the higher rate was applicable to interest accruing after December 31, 1984, attributable to an underpayment of tax due because of a “tax motivated transaction” whether or not the “tax motivated transaction” occurred before or after enactment. See generally Demos v. Commissioner, 68 T.C.M. (CCH) 209 (1994); see also Kennedy v. Commissioner, 876 F.2d 1251, 1256 (6th Cir.1989); DeMartino v. Commissioner, 862 F.2d 400, 408-09 (2d Cir.1988). On December 19, 1989, Congress passed the Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, 103 Stat. 2106, Section 7721(b) of which repealed I.R.C. § 6621(c). See 103 Stat. at 2399. However, this repeal only applied to “returns the due date for which (determined without regard to extensions) is after December 31, 1989.” Pub.L. No. 101-239, § 7721(c), 103 Stat. at 2400; see also Weiner, 389 F.3d at 159 n. 7. As a consequence, notwithstanding the repeal, Congress provided that interest at the higher “tax motivated transaction” rate would continue to accrue after 1989 if the underlying “tax motivated transaction” occurred in a tax year for which the initial due date for the tax return was on or before December 31,1989. Interest at" }, { "docid": "1492915", "title": "", "text": "the underpayment rate established under this subsection. (2) Substantial underpayment attributable to tax motivated transactions — For purposes of this subsection, the term “substantial underpayment attributable to tax motivated transactions” means any underpayment of taxes imposed by subtitle A for any taxable year which is attributable to 1 or more tax motivated transactions if the amount of the underpayment for such year so attributable exceeds $1,000. (3) Tax motivated transactions— (A) In general: For purposes of this subsection, the term “tax motivated transaction” means— * * H; * * * (v) any sham or fraudulent transaction. 26 U.S.C. § 6621(c) (repealed by Sec. 7721(b) of the Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, 103 Stat. 2106, effective for returns the due date of which determined without regard to extensions, is after December 31, 1989). The Tax Court disallowed the Feldmans’ deductions for Cambridge and Essex because the Feldmans presented no evidence that the partnership had economic substance or a profit motive under IRC § 183. Such a basis for disallowance is one of the bases justifying imposition of increased interest under former section 6621(c). Karr v. Commissioner, 924 F.2d 1018, 1026 (11th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 992, 117 L.Ed.2d 163 (1992), The Tax Court, however, imposed section 6621(c) interest rates because the Feldmans failed to substantiate a profit motive for the partnerships, not because it was able to find that no profit motive existed or that the lack of a profit motive was so apparent at the time taxpayers claimed the deductions as to make them “grossly erroneous.” When the Feldmans presented their case on the merits to the Tax Court, they attempted to convince the court that, whatever the failings of the general partners in Essex, Cambridge, and Berkeley, taxpayers themselves invested intending to make a profit and worked to insure they would profit. As the Tax Court observed in Douglas v. Commissioner, 86 T.C. 758, 1986 WL 22118 (1986), the fact that the Feldmans failed to establish this point because they were unable to substantiate it with records or other proof does not" }, { "docid": "1492914", "title": "", "text": "regard to Cambridge, the Tax Court upheld the disallowance primarily because the evidence submitted by the Feldmans did not show the following: that the partnership ever acquired ownership of the movie “Dirty Money;” what the partnership’s financial ob ligations were, if any; and that the general partner had any profit motive or engaged in any activity aimed at earning a profit. The Feldmans argue that the Tax Court erred in concluding that the deductions were not grossly erroneous because it necessarily follows from the Tax Court’s decision to uphold the imposition of the penalty interest rate of IRC § 6621(e) on the deductions that the deductions were grossly erroneous. However, “it does not follow that every deduction that is disallowed is necessarily ‘groundless.’” Bokum, 992 F.2d at 1142. Section 6621(c) imposes an increased interest rate for certain deficiencies: (1) In general — In the case of interest payable under section 6601 with respect to any substantial underpayment attributable to tax motivated transactions, the rate of interest established under this section shall be 120 percent of the underpayment rate established under this subsection. (2) Substantial underpayment attributable to tax motivated transactions — For purposes of this subsection, the term “substantial underpayment attributable to tax motivated transactions” means any underpayment of taxes imposed by subtitle A for any taxable year which is attributable to 1 or more tax motivated transactions if the amount of the underpayment for such year so attributable exceeds $1,000. (3) Tax motivated transactions— (A) In general: For purposes of this subsection, the term “tax motivated transaction” means— * * H; * * * (v) any sham or fraudulent transaction. 26 U.S.C. § 6621(c) (repealed by Sec. 7721(b) of the Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, 103 Stat. 2106, effective for returns the due date of which determined without regard to extensions, is after December 31, 1989). The Tax Court disallowed the Feldmans’ deductions for Cambridge and Essex because the Feldmans presented no evidence that the partnership had economic substance or a profit motive under IRC § 183. Such a basis for disallowance is one of" }, { "docid": "7039856", "title": "", "text": "to zero reflecting the subsidiary's deficit.”) (emphasis added). As such, were we to even consider the legislative history of section 952(c)(1)(C), we could not find it to be unequivocally in favor of the Stanfords' position. . Added to the Code in 1989, section 6664 is applicable to all tax returns due after December 31, 1989 (determined without regard to extensions). See Revenue Reconciliation Act of 1989, Pub.L. No. 101-239, § 7721(d), 103 Stat. 2106, 2400. The Stanfords’ 1990 income tax return was due in 1991. Consequently, assuming the Stanfords invoked section 6664 below, the reasonable cause/good faith defense in subsection (c)(1) is pertinent to resolving whether the understatement penalty at issue — stemming from the Stanfords’ 1990 return — is warranted. Prior to the enactment of section 6664, the reasonable cause/good faith defense was contained in I.R.C. § 6661(c), which read as follows: (c) Authority to waive. — The Secretary may waive all or any part of the addition to tax provided by this section!, i.e., the accuracy-related penalty,] on a showing by the taxpayer that there was reasonable cause for the understatement (or part thereof) and that the taxpayer acted in good faith. I.R.C. § 6661(c) (repealed in 1989). As such, prior to the applicability of section 6664, the Commissioner had discretion whether to waive the substantial understatement penalty on account of a taxpayer’s (a) reasonable cause for the understatement and (b) good faith actions, and our review of the Commissioner’s decision was for abuse of that discretion only. See Heasley v. Commissioner, 902 F.2d 380, 384—85 (5th Cir.1990). . As is evident from our discussion above, we do not accept the Commissioner’s contention that the Stanfords waived their reasonable-cause-for-underpayment argument by failing to adequately raise it in the court below. Noting that \"to be preserved, an argument must be pressed, and not merely intimated,” In re Fairchild Aircraft, 6 F.3d 1119, 1128 (5th Cir.1993) (citation omitted), the Commissioner insists that the Stan-fords' \"passing references” to the reasonable cause argument in the Tax Court were insufficient to preserve this argument for review, especially given the fact that the Tax" }, { "docid": "19099863", "title": "", "text": "specifying the amounts due in dollar terms. We disagree. Often the Tax Court will be unable to specify the § 6653(a)(2) penalty in dollar terms because the underlying interest will not have been paid at the time of the Tax Court’s decision and it continues to accrue to and including the date of payment. While in this case the Tax Court could have set forth the § 6653(a)(2) penalty in dollar terms because petitioners had already paid the tax deficiencies to the IRS, it was not error to fail to do so. Moreover, petitioners were not harmed by the oversight because the amounts are easily calculated by the parties by applying the 50-percent penalty rate to the amount of regular interest due on the tax deficiencies — amounts that are no longer in dispute. CONCLUSION For the foregoing reasons, the decisions of the Tax Court are affirmed. . Anthony and Gus Chimblo died in 1984 and 1988, respectively. John Santella died in 1996, before the trial in the tax court. Thus, at trial, Catherine and Josephine were the only people able to offer testimony regarding their Barrister investments. . The negligence addition to tax is now found at IRC § 6662. See Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, §§ 7721(a), (c)(1), 103 Stat. 2106, 2395-96, 2399. . This provision was repealed in 1989. See Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 7721(c)(2), 103 Stat. 2399." }, { "docid": "21184193", "title": "", "text": "No. 101-239, 103 Stat. 2106, Section 7721(b) of which repealed I.R.C. § 6621(c). See 103 Stat. at 2399. However, this repeal only applied to \"returns the due date for which (determined without regard to extensions) is after December 31, 1989.” Pub.L. No. 101-239, § 7721(c), 103 Stat. at 2400; see also Weiner v. United States, 389 F.3d 152, 159 n. 7 (5th Cir. 2004). As a consequence, notwithstanding the repeal, Congress provided that interest at the higher \"tax motivated transaction” rate would continue to accrue after 1989 if the underlying \"tax motivated transaction” occurred in a tax year for which the initial due date for the tax return was on or before December 31, 1989. . The recitations that follow do not constitute findings of fact by this court. Rather, the recited factual elements have been taken from the par ties’ filings and are either undisputed, except where a factual controversy is explicitly noted, or are alleged and assumed to be true for purposes of the pending motions. . But see Pls.’ Supp., Ex. A at A-69 (Order and Order of Dismissal and Decision, Vulcan Oil, No. 21530-87 (T.C. June 13, 2002)) (showing that a net loss of $20,008,710 was originally reported). See also Pis.’ Supp., Ex. A at A-53 (Resp’t’s Mot. to Dismiss at 6), Vulcan Oil, No. 21530-87 (T.C. Dec. 20, 2001) (same). The difference in these amounts is not material to the factual and legal issues in the case. . In Krause, the Tax Court had reviewed adjustments made by the IRS to the tax returns of an individual taxpayer, Gary E. Krause, for tax years 1982 and 1983, the returns of other individual taxpayers for the years 1980, 1981, and 1982, and the returns of two so-called \"Wichita Partnerships,” Technology Oil and Gas Associates 1980 and Barton Enhanced Oil Production Income Fund, for the 1982 and 1983 tax years. 99 T.C. at 132-34. At issue in Krause were claimed losses and deductions of partnerships that had engaged in similar transactions as Drake Oil. In Krause, the Tax Court concluded that losses of the partnerships would be" }, { "docid": "15195460", "title": "", "text": "OPINION NlMS, Chief Judge: This case is before the Court on respondent’s motions to dismiss for lack of jurisdiction as to section 6621(c). (Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years in issue. Section 7721(b) of the Omnibus Budget Reconciliation Act of 1989, Pub. L. 101-239, 103 Stat. 2106, 2399, repealed section 6621(c) effective for returns the due date of which (determined without regard to extensions) is after December 31, 1989.) Petitioner Fortune Odend’hal, Jr. IV (petitioner) invested in the so-called Kroger-Cincinnati Joint Venture during the years 1973-82. The proper treatment of losses from the investment for the years 1973-76 was resolved in Odend’hal v. Commissioner, 80 T.C. 588 (1983), affd. and remanded 748 F.2d 908 (4th Cir. 1984), cert. denied 471 U.S. 1143 (1985). The current docketed cases involve the tax years 1977 through 1982. Docket No. 6724-89 involves petitioner and his spouse, Carolyn Odend’hal, for the years 1978, 1979, 1980, 1981, and 1982. Docket No. 6725-89 involves only petitioner for the year 1977. Prior to the expiration of the time prescribed by section 6501(a) for assessment of income tax for the years at issue, petitioners, or their authorized representative, and respondent timely executed written agreements to extend the statute of limitations on assessment. Petitioners received 30-day letters with proposed deficiencies and also the addition to tax and increased interest at issue herein: the late filing addition to tax under section 6651(a)(1) for the years 1977, 1978, and 1979, and the increased rate of interest under section 6621(c) for the years 1977, 1978, 1979, 1980, 1981, and 1982. On August 26, 1987, petitioners agreed to the underlying deficiencies, but disagreed with the addition to tax and the increased interest. Forms 870, Waiver of Restrictions on Assessment and Collection of Deficiencies, for all 6 years were signed by petitioners’ representative for the amounts of the underlying deficiencies only. Pursuant to these agreements, the underlying deficiencies and regular interest (but not the section 6621(c) interest or the section 6651(a)(1) addition to tax) were assessed on September 25, 1987, for all 6 years." }, { "docid": "15191045", "title": "", "text": "determine the portion of such deficiency which is a substantial underpayment attributable to tax-motivated transactions. The language “such deficiency” refers to the deficiency which the Court is redetermining. The Tax Court only has jurisdiction to determine the portion of the deficiency before the Court which is “a substantial underpayment attributable to tax motivated transactions.” Section 6621(c)(2) provides in pertinent part: the term “substantial underpayment attributable to tax motivated transactions” means any underpayment of taxes imposed by subtitle A for any taxable year which is attributable to 1 or more tax motivated transactions if the amount * * * exceeds $1,000. [Emphasis added.] A substantial underpayment attributable to tax-motivated transactions only includes taxes imposed by subtitle A. The only deficiencies in tax in the present case before the Court are additions to tax. Additions to tax are imposed by subtitle F, not subtitle A. Thus, in the present case no portion of the deficiency before the Court is attributable to taxes imposed by subtitle A. Therefore, no portion of the deficiency before the Court can be a substantial underpayment attributable to tax-motivated transactions. Accordingly, we hold that this Court does not have jurisdiction under section 6621(c)(4) in the setting presented in this case to determine whether additional interest applies because the deficiency before the Court is not a substantial underpayment attributable to tax-motivated transactions. The jurisdictional provisions of the Internal Revenue Code do not give this Court jurisdiction to determine whether TEFRA partners, such as petitioners, are liable for additional interest. We recognize that section 6621(c) was repealed by section 7721(b) of the Omnibus Budget Reconciliation Act of 1989, Pub. L. 101-239, 103 Stat. 2106, 2399. Consequently, Congress would need to retroactively amend the jurisdictional provisions to resolve this problem. Accordingly, respondent’s motion to dismiss for lack of jurisdiction as to section 6621(c) will be granted. To reflect the foregoing, An appropriate order will be issued. Reviewed by the Court. Chabot, Parker, Hamblen, Cohen, Swift, Jacobs, Gerber, Wright, Wells, Ruwe, Whalen, and HALPERN, JJ., agree with the majority. 50% of the interest payable under sec. 6601 with respect to the portion" }, { "docid": "14997995", "title": "", "text": "sections 6662 through 6664 of the code. . Section 6661(c) authorized the Secretary of the Treasury to waive the addition if the taxpayer showed that there was reasonable cause for the understatement and that the taxpayer acted in good faith. The Andersons also suggest that they had reasonable cause for the understatement and acted in good faith. However, the Andersons have not shown that they ever asked the Secretary to waive the addition to tax. Moreover, the statute makes waiver of the penalty discretionary with the Secretary, see Mauerman v. Commissioner, 22 F.3d 1001, 1004 (10th Cir.1994), and the Andersons have not argued, much less shown, that the Secretary abused his discretion in not waiving the penalty. The Secretary does not abuse his discretion by refusing to grant a waiver that was never requested. . Subsection (c) was originally added to section 6621 as subsection (d) in 1984 and redesignated (c) in 1986. Increased interest under section 6621(c) applies only to interest accruing after December 31, 1984. See Pub.L. No. 98-369, § 144(c), 98 Stat. 494, 684 (1984); Estate of Carberry v. Commissioner, 933 F.2d 1124, 1129 (2d Cir.1991). . Sham and fraudulent transactions were added to the definition of \"tax motivated transaction” by the Tax Reform Act of 1986. See Pub.L. No. 99-514, § 1535, 100 Stat. 2085, 2750 (1986). The Andersons do not dispute that the 1986 amendment applies in this case. Cf. Hunt v. Commissioner, 938 F.2d 466, 473 n. 14 (4th Cir.1991) (the increased interest rate under section 6621(c) applies retroactively to sham and fraudulent transactions so long as no final court decision with respect to the underpayment was entered before October 22, 1986, the date of the Tax Reform Act of 1986). See also Kennedy v. Commissioner, 876 F.2d 1251, 1256 (6th Cir.1989) (citing Tax Court cases upholding the constitutionality of applying the 1986 amendment retroactively). . Even if Mr. Anderson's motive were relevant, there was ample evidence to suggest that Mr. Anderson invested in GD & L primarily for its tax benefits. That evidence included the promotional materials, which emphasized the tax benefits to" } ]

[ { "docid": "3101688", "title": "", "text": "appeal. Id., 438 N.E.2d at 342. The court said that it was not imposing these requirements at the first tier where an admission to sufficient facts could be treated more informally. Id. But it did not say how much more informally and, surprisingly, we have not discovered anything in the briefs, the record, or the cases or treatises cited to us that explains in any detail how a first tier admission to sufficient facts actually works in the courtroom. How it works matters. Perhaps, as in a typical federal court guilty plea, the prosecutor gives a recitation of what the government would prove, and the defendant expressly accepts the government’s version of events (possibly with qualifications), and the judge then determines that the admitted facts if proved would constitute the offense. This sequence, or any other that achieved the same effect, would give reasonable assurance that the defendant had confessed to certain events and that the events constituted a crime. That, in our view, would make the admission effectively an admission of guilt under the guidelines. But in the hard-pressed conditions of a busy first-instance court, it is easy to imagine procedures that would give far less assurance. For aught we can tell, the prosecutor and the defendant or his counsel may do little more than tell the judge that the parties have agreed to dispose of the matter by a continuance, admission to sufficient facts, and a treatment program. There would be nothing reprehensible about such a procedure; but it would give one little confidence that the defendant had admitted to a crime. Indeed, it would approach the “[djiversion from the judicial process without a finding of guilt” that the guidelines say is “not counted.” U.S.S.G. § 4A1.2(f). It is the government that is seeking to assign the extra criminal history point to Roberts and it therefore carries the burden of showing whatever facts are needed to justify the point. Here Roberts did not in formal terms admit his “guilt,” and it is the government that needs to show that what happened in 1986 was in substance an admission" } ]

[ { "docid": "13276975", "title": "", "text": "is the juvenile court in Rhode Island, these dispositions cannot be counted toward DiPina’s criminal history. If, on the other hand, DiPina’s prior juvenile dispositions were not diversionary dispositions, then the district court must determine whether his admitting sufficient facts in Rhode Island Family Court was tantamount to a plea of guilty or nolo under U.S.S.G. § 4A1.2(a)(l) ... If DiPina’s prior juvenile dispositions were not tantamount to a plea of guilty or nolo, then they may not be counted toward his criminal history. Id. at 78. On remand, the district court limited its consideration to only one of DiPina’s juvenile dispositions: his admission of sufficient facts as to the unlawful delivery of heroin charges, which had resulted in an eighteen-month sentence at the Rhode Island Training School (RITS). The government introduced the following evidence: On July 15, 1992, the state of Rhode Island filed four charges against DiPina based on allegations that he delivered heroin to an undercover officer in violation of R.I. Gen. Laws § 21-28-4.01(2)(a). Based on the state’s allegation that DiPina was a danger to the community, he was remanded to the custody of RITS. DiPina waived his right to a probable cause hearing. On August 7,1992, DiPina, DiPina’s lawyer, and DiPina’s mother signed the first page of a two-page document entitled “Request for Admission of Specific Facts or Admission” (“RFA”). The first page of the RFA described the “offense(s)” as “Ct-1 — Ct-4 unlawful delivery.” As to those offenses, DiPina affirmed that he was “requesting] Court permission to withdraw [his] denial and to enter an AD- MISSION TO SUFFICIENT FACTS OR ADMISSION.” DiPina also stated: I understand that the ADMISSION OF SUFFICIENT FACTS is for all purposes the same as an ADMISSION and that I will be admitting sufficient facts to substantiate the offense(s) which [have] been brought against me in the cases to which these pleas relate. In the RFA, DiPina affirmed that by changing his plea he would be “giving up and waiving” seven enumerated rights: (1) the right to a judge trial and to an appeal of any finding of delinquency or" }, { "docid": "13276992", "title": "", "text": "against me in the cases to which these pleas relate.” Finally, the family court determined that DiPina’s conduct constituted an offense under Rhode Island law, R.I. Gen. Laws § 21 — 28—4.01(2)(a). Hence, we conclude that the district court correctly determined that the heroin disposition was equivalent to a guilty plea for sentencing purposes. We do not hold that a simple “admission to sufficient facts” is automatically enough in the absence of safeguards such as occurred here. DiPina complains that the family court failed to inform him of all of the rights enumerated in Fed.R.Crim.P. 11. Nowhere in our earlier opinion, however, did we suggest that compliance with Rule 11 is a prerequisite to determining that an admission of sufficient facts is tantamount to a guilty or nolo contendere plea, and DiPi-na cites no authority to support his position. We have, in fact, previously stated that any sequence that gives “reasonable assurance that the defendant had confessed to certain events and that the events constituted a crime ... would make the admission effectively an admission of guilt under the guidelines.” United States v. Roberts, 39 F.3d 10, 13 (1st Cir.1994). As it happens, the record supports the conclusion that the family court substantially complied with Rule 11 in the heroin disposition. The court effectively informed pi-Pina of the nature of the charges against him; the maximum possible penalty; his right to contest the charges and choose to proceed to trial; his right to assistance of counsel; his right against compelled self-incrimination; that by entering the plea he was waiving his right to trial; and that he was waiving his right to appeal. See Fed. R.Crim.P. 11(c). Moreover, the family court addressed DiPina and ascertained that he understood the rights he was giving up, that the plea was entered voluntarily and was based on sufficient facts. See Fed.R.Crim.P. 11(d). C. Fed.R.Crim.P. 32 DiPina contends that the district court violated Fed.R.Crim.P. 32 in not providing him an opportunity for allocution before reimposing the sentence. This court has held, however, that Rule 32 does not require that opportunity where the court merely reimposes" }, { "docid": "13276983", "title": "", "text": "of the term “prior sentence”: (a) Prior Sentence Defined (1) The term “prior sentence” means any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense. U.S.S.G. § 4A1.2(a)(l). Certain prior sentences, however, “are not counted or are counted only under certain conditions.” § 4A1.1, cmt. n. 3. Of relevance here is the “diversionary disposition,” which “is counted only where there is a finding or admission of guilt in a judicial proceeding.” Id. The commentary references “Diversionary Dispositions,” § 4Al.2(f), which provides: Diversion from the judicial process without a finding of guilt (e.g., deferred prosecution) is not counted. A diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a sentence under § 4Al.l(c) even if a conviction is not formally entered, except that diversion from juvenile couH is not counted. U.S.S.G. § 4A1.2(f) (emphasis added). III. In reviewing a sentence under the guidelines, we determine the applicability of each guideline to a particular case de novo. See United States v. Cali, 87 F.3d 571, 575 (1st Cir.1996). We review the district court’s factual determinations for clear error, giving “due deference to the district courts application of the guidelines to the facts.” Id. (internal quotation marks omitted). On appeal, DiPina asserts several points: (1) the court erroneously concluded that his juvenile dispositions were not diversionary within the meaning of § 4A1.2(f); (2) the court erroneously de termined that his admission of sufficient facts in Rhode Island Family Court was tantamount to a guilty plea; (3) the court violated Fed.R.Crim.P. 32 at the resen-tencing; (4) the court incorrectly calculated DiPina’s criminal history score; and (5) the judge was biased. A. “Diversionary' disposition” First, DiPina contends that his juvenile court proceedings were diversionary dispositions within the meaning of U.S.S.G. § 4A1.2(f). In our earlier decision in this case, we noted: [T]he guidelines do not specifically define what they mean by a “diversionary disposition,” nor did the drafters make it particularly clear what they intended" }, { "docid": "13276991", "title": "", "text": "tantamount to a guilty or nolo plea. If, on the other hand, “the prosecutor and the defendant or his counsel ... [did] little more than tell the judge that the parties have agreed to dispose of the matter by a continuance, admission to sufficient facts, and a treatment program it would not appear that the defendant had admitted to a crime.” Id. The record permits no conclusion other than that DiPinas admission of sufficient facts on the heroin charges, given what transpired at the hearing, effectively constituted a confession to events that constituted a crime. See id. at 75. During the family court hearing, the prosecutor recited what the state would prove if the matter were to proceed to trial: that DiPina “did deliver unlawfully heroin to an undercover officer from the Providence Police on July 1st, July 7th, July 8th and July 14th of [1992].” DiPina expressly and without qualification admitted those facts. Furthermore, he affirmed in the RFA that he would be “admitting sufficient facts to substantiate the offense(s) which [have] been brought against me in the cases to which these pleas relate.” Finally, the family court determined that DiPina’s conduct constituted an offense under Rhode Island law, R.I. Gen. Laws § 21 — 28—4.01(2)(a). Hence, we conclude that the district court correctly determined that the heroin disposition was equivalent to a guilty plea for sentencing purposes. We do not hold that a simple “admission to sufficient facts” is automatically enough in the absence of safeguards such as occurred here. DiPina complains that the family court failed to inform him of all of the rights enumerated in Fed.R.Crim.P. 11. Nowhere in our earlier opinion, however, did we suggest that compliance with Rule 11 is a prerequisite to determining that an admission of sufficient facts is tantamount to a guilty or nolo contendere plea, and DiPi-na cites no authority to support his position. We have, in fact, previously stated that any sequence that gives “reasonable assurance that the defendant had confessed to certain events and that the events constituted a crime ... would make the admission effectively an admission" }, { "docid": "18949791", "title": "", "text": "not based on the court’s actual findings of fact, and it is clearly not supported by the present record. Nothing in the government’s post-argument submission, relying on three rules of the Rhode Island Family Court, clearly resolves the matter in the government’s favor. At this point, because the government has failed to satisfy its burden on the record before us, we could simply vacate the sentence and remand for the district court to resentence DiPina without considering, as part of his criminal history, his prior juvenile dispositions. Instead, we remand for a factual determination of what judicial process was followed in DiPina’s juvenile cases. See Roberts, 39 F.3d at 13-14. We leave it to the district court on remand to determine the relevant facts in the first instance. The court on remand will have to determine whether all requirements of § 4A1.2(a)(l) were met. That is, was DiPina’s “admission of sufficient facts” the functional equivalent of a guilty plea or a nolo plea? (There apparently was no trial, the third possibility under 4A1.2(a)(l).) If one or both of DiPina’s prior dispositions was the equivalent of a guilty plea or nolo plea, then that disposition may be counted toward his criminal history. On the other hand, if, after fact-finding, it appears that all DiPina did was “submit to the court’s jurisdiction,” Rule 9, RIFC Rules, and accept its rehabilitative services, that is a far cry from the Roberts scenario where “the defendant ha[s] confessed to certain events and ... the events constituted a crime.” Roberts, 39 F.3d at 13. If DiPina’s prior juvenile dispositions are not tantamount - to a guilty plea or a nolo plea, then they may not be counted, because U.S.S.G. § 4A1.2(a)(l) does not afford a basis for the government to add such a criminal history point. We remind the parties that the government bears the burden, if it wishes to add points to a defendant’s criminal history, of proving whatever facts are necessary to establish the justification for adding such points. See Roberts, 39 F.3d at 13.- There is another aspect to the remand which was" }, { "docid": "18949787", "title": "", "text": "procedures that are different from those involving the contested probation sentence. If so, and if those procedures are tantamount to a plea of guilty or nolo, then it will be possible for the district court to conclude that one of DiPina’s prior juvenile dispositions should be counted toward his criminal history and one should not. In the circumstances of this case, although we do not resolve the issue, it would appear that counting one such prior disposition would be enough to produce the criminal history level required to sustain DiPina’s sentence in the present case, regardless of how the other prior disposition is treated. As we noted in Roberts, 39 F.3d at 13, because it is the government that is seeking to assign the extra criminal history points to DiPina, the government “therefore carries the burden of showing whatever facts are needed to justify the point[s].” In this case, that means the burden is on the government to “show that what happened in [the prior proceeding] was in substance ” a plea of guilty or nolo, id., as required by § 4A1.2(a)(l), i.e., the court must have found “that the defendant ha[s] confessed to certain events” or that other evidence proves such events, “and that the events constituted a crime,” id. This is a factual question. The district court did not resolve it and the record before us today provides insufficient evidence for us to know which of the two polar case scenarios in Roberts is a closer analogue to DiPina’s prior juvenile dispositions. The record simply tells us that DiPina “admitted sufficient facts.” Sufficient for what? What did he admit? Did he admit sufficient facts which, if proved, would constitute an offense, which might be tantamount to a plea of guilty or nob under the guideline? Cf. Roberts, 39 F.3d at 12-13 (“admission of guilt” under U.S.S.G. § 4A1.2(f)). Or did he instead admit no actual facts at all, merely “tell[ing] the judge that the parties have agreed to dispose of the problem” by an admission of sufficient facts and the negotiated disposition? Id. at 13. In Nicholas, we" }, { "docid": "13276990", "title": "", "text": "disposition would be enough to produce the criminal history level required to sustain DiPina’s sentence in the present case, regardless of how the other prior disposition is treated”). B. Tantamount to guilty plea Second, DiPina challenges the district courts conclusion that his admission of sufficient facts in the heroin disposition was tantamount to a guilty plea. In our earlier opinion, ,we said that in order to so conclude, “the court must have found that the defendant has confessed to certain events or that other evidence proves such events, and that the events constituted a crime.” DiPina, 178 F.3d at 75 (internal quotation marks omitted). Specifically, we recommended that the district court examine factors such as whether the prosecutor recited what the state would prove if the case were to proceed to trial; whether the defendant accepted the prosecutor’s version of the events; and whether the family court judge determined that the admitted facts, if proved, would constitute an offense. Id. at 74. If these factors were present, the admission of sufficient facts would likely be tantamount to a guilty or nolo plea. If, on the other hand, “the prosecutor and the defendant or his counsel ... [did] little more than tell the judge that the parties have agreed to dispose of the matter by a continuance, admission to sufficient facts, and a treatment program it would not appear that the defendant had admitted to a crime.” Id. The record permits no conclusion other than that DiPinas admission of sufficient facts on the heroin charges, given what transpired at the hearing, effectively constituted a confession to events that constituted a crime. See id. at 75. During the family court hearing, the prosecutor recited what the state would prove if the matter were to proceed to trial: that DiPina “did deliver unlawfully heroin to an undercover officer from the Providence Police on July 1st, July 7th, July 8th and July 14th of [1992].” DiPina expressly and without qualification admitted those facts. Furthermore, he affirmed in the RFA that he would be “admitting sufficient facts to substantiate the offense(s) which [have] been brought" }, { "docid": "18949782", "title": "", "text": "“had no cause to address, and did not carefully consider, the damages question before us today”). We would not be bound even if, in Unger, we had made a passing comment about the present issue in dictum. See Heck, 512 U.S. at 482, 114 S.Ct. 2364; Dedham Water Co., Inc. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 459 (1st Cir.1992) (“Dictum constitutes neither the law of the case nor the stuff of binding precedent.”). But the government cannot even point to dictum in Unger that purports to bear on the present issue. For all these reasons, Unger does not control this case, and we reject the government’s argument that, as a matter of law, U.S.S.G. §§ 4A1.2(a)(l) supports the district court’s adding criminal history points based on DiPina’s two prior juvenile dispositions. Instead, the applicability of § 4A1.2(a)(l) will be fact-driven. It will depend on what process was actually followed in the case of DiPina’s prior juvenile dispositions. As we discuss infra, the record before us is insufficient; we need more facts to be able to determine whether what happened to DiPina in Family Court was tantamount to a guilty plea or nolo plea, bringing those dispositions under § 4A1.2(a)(l). DiPina’s two dispositions based on admission to “sufficient facts” were certainly not absolutely identical to a nolo plea: Rhode Island Family Court allows for dispositions that are based specifically on a “nolo ” plea, as the PSR indicates was the case for DiPina’s resisting arrest disposition. Therefore, the “admits sufficient facts” designation in DiPina’s other two juvenile dispositions must be different from a “nolo ” plea in at least some respects. In a slightly different context, in United States v. Roberts, 39 F.3d 10 (1st Cir. 1994), we made it clear that it was important to know how the process of admitting to sufficient facts “actually works in the court room,” because “[h]ow it works matters.” Id. at 13. We also set forth some indicators of what kind of process would be sufficient to “make the admission effectively an admission of guilt under the guidelines”: Perhaps, as in a" }, { "docid": "18949785", "title": "", "text": "it would approach the “diversion from the judicial process without a finding of guilt” that the guidelines say is “not counted.” U.S.S.G. § 4A1.2(f). Roberts, 39 F.3d at 13. In substance, these two scenarios provide some guidance that may help the district court — when more is known about the Rhode Island process — to decide whether admission to sufficient facts in the juvenile court should be viewed as the equivalent of a guilty plea or a nolo plea under U.S.S.G. § 4A1.2(a)(l). We are not, however, seeking narrowly to confine the district court’s inquiry: the phrase “admission to sufficient facts” does not necessarily mean the same thing in every context or jurisdiction, the Massachusetts two-step procedure appears to be unusual, and Roberts was not an attempt to create an all-encompassing formula. Both sides are free to produce information on remand about how the admission to sufficient facts procedure operates in Rhode Island juvenile courts in general, or with reference to the specific two' instances involved in this case (if information is available), or both. In particular, if the government relies on evidence of general practice and on the inference that the general practice was followed in DiPina’s case, DiPina is free “to offer evidence that the general practice was not followed in his case and that what happened to him was inadequate to constitute” the equivalent of a guilty plea or nolo plea. Roberts, 39 F.3d at 13. The court should, in each instance, focus on whether the substance of the plea is guilty or nolo, i.e., whether the defendant either confessed to events which constituted a crime or stated his decision not to contest such events. See id. Further, we are not suggesting that every admission to sufficient facts in Rhode Island juvenile court necessarily must be treated in the same way. For example, it might turn out to be the fact that the admission to sufficient facts that led to DiPina’s spending eighteen months in the Rhode Island Training School might — given the seriousness of the penalty' — -have been accompanied by or entailed notice and" }, { "docid": "18949783", "title": "", "text": "able to determine whether what happened to DiPina in Family Court was tantamount to a guilty plea or nolo plea, bringing those dispositions under § 4A1.2(a)(l). DiPina’s two dispositions based on admission to “sufficient facts” were certainly not absolutely identical to a nolo plea: Rhode Island Family Court allows for dispositions that are based specifically on a “nolo ” plea, as the PSR indicates was the case for DiPina’s resisting arrest disposition. Therefore, the “admits sufficient facts” designation in DiPina’s other two juvenile dispositions must be different from a “nolo ” plea in at least some respects. In a slightly different context, in United States v. Roberts, 39 F.3d 10 (1st Cir. 1994), we made it clear that it was important to know how the process of admitting to sufficient facts “actually works in the court room,” because “[h]ow it works matters.” Id. at 13. We also set forth some indicators of what kind of process would be sufficient to “make the admission effectively an admission of guilt under the guidelines”: Perhaps, as in a typical federal court guilty plea, the prosecutor gives a recitation of what the government would prove, and the defendant expressly accepts the government’s version of events (possibly with qualifications), and the judge then determines that the admitted facts if proved would constitute an offense. This sequence, or any other that achieved the same effect, would give reasonable assurance that the defendant had confessed to certain events and that the events constituted a crime. 39 F.3d at 13. We also suggested a procedure that would not be “effectively an admission of guilt under the guidelines”: [I]n the hard-pressed conditions of a busy first-instance court, it is easy to imagine procedures that would give far less assurance. For aught we can tell, the prosecutor and the defendant or his counsel may do little more than tell the judge that the parties have agreed to dispose of the matter by a continuance, admission to sufficient facts, and a treatment program.... [S]uch a procedure ... would give one little confidence that the defendant had admitted to a crime. Indeed," }, { "docid": "18949786", "title": "", "text": "In particular, if the government relies on evidence of general practice and on the inference that the general practice was followed in DiPina’s case, DiPina is free “to offer evidence that the general practice was not followed in his case and that what happened to him was inadequate to constitute” the equivalent of a guilty plea or nolo plea. Roberts, 39 F.3d at 13. The court should, in each instance, focus on whether the substance of the plea is guilty or nolo, i.e., whether the defendant either confessed to events which constituted a crime or stated his decision not to contest such events. See id. Further, we are not suggesting that every admission to sufficient facts in Rhode Island juvenile court necessarily must be treated in the same way. For example, it might turn out to be the fact that the admission to sufficient facts that led to DiPina’s spending eighteen months in the Rhode Island Training School might — given the seriousness of the penalty' — -have been accompanied by or entailed notice and procedures that are different from those involving the contested probation sentence. If so, and if those procedures are tantamount to a plea of guilty or nolo, then it will be possible for the district court to conclude that one of DiPina’s prior juvenile dispositions should be counted toward his criminal history and one should not. In the circumstances of this case, although we do not resolve the issue, it would appear that counting one such prior disposition would be enough to produce the criminal history level required to sustain DiPina’s sentence in the present case, regardless of how the other prior disposition is treated. As we noted in Roberts, 39 F.3d at 13, because it is the government that is seeking to assign the extra criminal history points to DiPina, the government “therefore carries the burden of showing whatever facts are needed to justify the point[s].” In this case, that means the burden is on the government to “show that what happened in [the prior proceeding] was in substance ” a plea of guilty or" }, { "docid": "18949790", "title": "", "text": "have “far less assurance” that DiPina “confessed to certain events and that the events constituted a crime.” Roberts, 39 F.3d at 13; cf. United States v. Dueno, 171 F.3d 3, 7 (1st Cir.1999) (analyzing prior adult conviction and concluding that there was “insufficiently reliable evidence to ground a finding” that the defendant’s guilty plea to breaking and entering charge entailed entry into a building as would be necessary to invoke career offender provisions of sentencing guidelines; and deciding that PSR’s uncontradicted description of a home invasion, presumably based on a police report (of undisclosed genesis), was insufficient to demonstrate that defendant’s prior guilty plea “constituted an admission to the building invasion described by the police report”). The record does not tell us what facts DiPina admitted, and therefore we cannot know whether what he admitted is sufficient to satisfy the requirement of the guideline. The district court baldly asserted, without articulating any basis or citing to Rhode Island law, that an admission of sufficient facts is the “equivalent of a nolo plea.” That assertion was not based on the court’s actual findings of fact, and it is clearly not supported by the present record. Nothing in the government’s post-argument submission, relying on three rules of the Rhode Island Family Court, clearly resolves the matter in the government’s favor. At this point, because the government has failed to satisfy its burden on the record before us, we could simply vacate the sentence and remand for the district court to resentence DiPina without considering, as part of his criminal history, his prior juvenile dispositions. Instead, we remand for a factual determination of what judicial process was followed in DiPina’s juvenile cases. See Roberts, 39 F.3d at 13-14. We leave it to the district court on remand to determine the relevant facts in the first instance. The court on remand will have to determine whether all requirements of § 4A1.2(a)(l) were met. That is, was DiPina’s “admission of sufficient facts” the functional equivalent of a guilty plea or a nolo plea? (There apparently was no trial, the third possibility under 4A1.2(a)(l).) If one" }, { "docid": "13276974", "title": "", "text": "the present case, DiPina appealed, contending that the district court erred in determining his criminal history category. He argued that two of his three prior juvenile dispositions — for the motor vehicle and heroin offenses, both carrying the notation “admits sufficient facts”— should not count toward his criminal history. If those two dispositions were disregarded, DiPina’s criminal history would be in category I instead of category III, and he would be eligible for the safety valve. On January 29, 1999, while the appeal was pending, DiPina completed his prison term and began serving his five-year term of supervised release. On May 27, 1999, this court held that DiPina’s appeal raised issues that depended on “certain factual determinations and the record is not clear enough as to these issues for us to resolve the dispute.” See DiPina, 178 F.3d at 78. We vacated DiPi-na’s sentence and remanded for further proceedings, stating: [0]n remand, the district court must first determine whether DiPina’s prior juvenile dispositions constituted diversions, such that subsection 4A1.2(f) applies. If so, because Family Court is the juvenile court in Rhode Island, these dispositions cannot be counted toward DiPina’s criminal history. If, on the other hand, DiPina’s prior juvenile dispositions were not diversionary dispositions, then the district court must determine whether his admitting sufficient facts in Rhode Island Family Court was tantamount to a plea of guilty or nolo under U.S.S.G. § 4A1.2(a)(l) ... If DiPina’s prior juvenile dispositions were not tantamount to a plea of guilty or nolo, then they may not be counted toward his criminal history. Id. at 78. On remand, the district court limited its consideration to only one of DiPina’s juvenile dispositions: his admission of sufficient facts as to the unlawful delivery of heroin charges, which had resulted in an eighteen-month sentence at the Rhode Island Training School (RITS). The government introduced the following evidence: On July 15, 1992, the state of Rhode Island filed four charges against DiPina based on allegations that he delivered heroin to an undercover officer in violation of R.I. Gen. Laws § 21-28-4.01(2)(a). Based on the state’s allegation that DiPina" }, { "docid": "18949788", "title": "", "text": "nolo, id., as required by § 4A1.2(a)(l), i.e., the court must have found “that the defendant ha[s] confessed to certain events” or that other evidence proves such events, “and that the events constituted a crime,” id. This is a factual question. The district court did not resolve it and the record before us today provides insufficient evidence for us to know which of the two polar case scenarios in Roberts is a closer analogue to DiPina’s prior juvenile dispositions. The record simply tells us that DiPina “admitted sufficient facts.” Sufficient for what? What did he admit? Did he admit sufficient facts which, if proved, would constitute an offense, which might be tantamount to a plea of guilty or nob under the guideline? Cf. Roberts, 39 F.3d at 12-13 (“admission of guilt” under U.S.S.G. § 4A1.2(f)). Or did he instead admit no actual facts at all, merely “tell[ing] the judge that the parties have agreed to dispose of the problem” by an admission of sufficient facts and the negotiated disposition? Id. at 13. In Nicholas, we relied on facts “formalized in written stipulations,” even though we rejected the defendant’s claim that the government failed to meet its burden because it did not append the actual police report to the defendant’s waiver of rights submitted to the court under Commonwealth v. Duquette, 386 Mass. 834, 438 N.E.2d 334, 342 (1982). See Nicholas, 133 F.3d at 136. In the present case, not only are there no formal written stipulations of the facts, but the record before us does not even reflect an oral agreement as to what facts underlay the prior juvenile dispositions. The PSR summarizes some allegations regarding DiPina’s juvenile heroin charge (although it offered no facts as to the motor vehicle charge). But the PSR cites no source or evidence in support of the stated allegations and we have no reason to believe that DiPina’s “admission of sufficient facts” in Family Court encompassed any or all of such allegations. For aught we can tell, DiPina’s admission was simply the type described in the second Roberts scenario (the “busy court”), and we" }, { "docid": "18949789", "title": "", "text": "relied on facts “formalized in written stipulations,” even though we rejected the defendant’s claim that the government failed to meet its burden because it did not append the actual police report to the defendant’s waiver of rights submitted to the court under Commonwealth v. Duquette, 386 Mass. 834, 438 N.E.2d 334, 342 (1982). See Nicholas, 133 F.3d at 136. In the present case, not only are there no formal written stipulations of the facts, but the record before us does not even reflect an oral agreement as to what facts underlay the prior juvenile dispositions. The PSR summarizes some allegations regarding DiPina’s juvenile heroin charge (although it offered no facts as to the motor vehicle charge). But the PSR cites no source or evidence in support of the stated allegations and we have no reason to believe that DiPina’s “admission of sufficient facts” in Family Court encompassed any or all of such allegations. For aught we can tell, DiPina’s admission was simply the type described in the second Roberts scenario (the “busy court”), and we have “far less assurance” that DiPina “confessed to certain events and that the events constituted a crime.” Roberts, 39 F.3d at 13; cf. United States v. Dueno, 171 F.3d 3, 7 (1st Cir.1999) (analyzing prior adult conviction and concluding that there was “insufficiently reliable evidence to ground a finding” that the defendant’s guilty plea to breaking and entering charge entailed entry into a building as would be necessary to invoke career offender provisions of sentencing guidelines; and deciding that PSR’s uncontradicted description of a home invasion, presumably based on a police report (of undisclosed genesis), was insufficient to demonstrate that defendant’s prior guilty plea “constituted an admission to the building invasion described by the police report”). The record does not tell us what facts DiPina admitted, and therefore we cannot know whether what he admitted is sufficient to satisfy the requirement of the guideline. The district court baldly asserted, without articulating any basis or citing to Rhode Island law, that an admission of sufficient facts is the “equivalent of a nolo plea.” That assertion was" }, { "docid": "18949794", "title": "", "text": "4A1.2(f) requires counting prior adult diversionary disposi tions if they involved a judicial determination of guilt or an admission of guilt in open court” (emphasis added)). In Rhode Island, the Family Court is where juvenile proceedings like DiPina’s take place. See Rhode Island Family Court Act, R.I. Gen. Laws § 14-1-5 (1956, 1981 Reenactment) (The Family Court has “exclusive original jurisdiction in proceedings (A) [cjoncerning any child ... who is: (l)[d]elinquent; [or] (2)[w]ayward.”); Bouchard v. Price, 694 A.2d 670, 672 (R.I. 1997). Therefore, the Rhode Island Family Court is encompassed within the meaning of “juvenile court” in U.S.S.G. § 4A1.2(f), and diversionary dispositions in that court are not counted toward a defendant’s criminal history. Thus, if DiPina’s prior juvenile dispositions were “diversionary dispositions” within the meaning of § 4A1.2 (f), then they could not be counted toward his criminal history. The record reveals nothing about whether or not they were diversionary, so the district court must resolve this question on remand. We note that the guidelines do not specifically define what they mean by a “diversionary disposition,” nor did the drafters make it particularly clear what they intended to mean by that term. They offer one, and only one, example — a “deferred prosecution” — -which is certainly not exhaustive. U.S.S.G. § 4A1.2(f). And subsection 4A1.2(f) begins with a reference to “[djiversion from the judicial process.” In sum, on remand, the district court must first determine whether DiPina’s pri- or juvenile dispositions constituted diversions, such that subsection 4A1.2(f) applies. If so, because Family Court is the juvenile court in Rhode Island, these dispositions cannot be counted toward DiPina’s criminal history. If, on the other hand, DiPina’s prior juvenile dispositions were not diversionary dispositions, then the district court must determine whether his admitting sufficient facts in Rhode Island Family Court was tantamount to a plea of guilty or nolo under U.S.S.G. § 4A1.2(a)(l). That is, were those admissions the equivalent of the first Roberts scenario, where “the defendant ha[s] confessed to certain events” (or other evidence proves such events) “and ... the events constituted a crime”? Roberts, 39 F.3d at 13." }, { "docid": "18949792", "title": "", "text": "or both of DiPina’s prior dispositions was the equivalent of a guilty plea or nolo plea, then that disposition may be counted toward his criminal history. On the other hand, if, after fact-finding, it appears that all DiPina did was “submit to the court’s jurisdiction,” Rule 9, RIFC Rules, and accept its rehabilitative services, that is a far cry from the Roberts scenario where “the defendant ha[s] confessed to certain events and ... the events constituted a crime.” Roberts, 39 F.3d at 13. If DiPina’s prior juvenile dispositions are not tantamount - to a guilty plea or a nolo plea, then they may not be counted, because U.S.S.G. § 4A1.2(a)(l) does not afford a basis for the government to add such a criminal history point. We remind the parties that the government bears the burden, if it wishes to add points to a defendant’s criminal history, of proving whatever facts are necessary to establish the justification for adding such points. See Roberts, 39 F.3d at 13.- There is another aspect to the remand which was not discussed by the district court or the parties: the effect, if any, to be given to U.S.S.G. § 4A1.2(f), titled “Diversionary Dispositions.” Subsection 4A1.2(f) reads as follows: (f) Diversionary Dispositions Diversion from the judicial process without a finding of guilt (e.g., deferred prosecution) is not counted. A diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in á judicial proceeding is counted as a sentence under § 4Al.l(c) even if a conviction is not formally entered, except that diversion from juvenile court is not counted. U.S.S.G. § 4A1.2(f) (second emphasis added). If DiPina’s prior juvenile dispositions were “diversionary dispositions,” then we think it clear that Section, 4A1.2(f) does not permit the district court to count those dispositions as part of DiPina’s criminal history. The last proviso of subsection 4A1.2(f) contains a significant exception -to the counting of diversionary dispositions: “diversion from juvenile court is not counted” toward the defendant’s criminal history. U.S.S.G. § 4A1.2(f) (emphasis added); see also U.S.S.G. § 4A1.2 application note 9 (explaining that “Section" }, { "docid": "18949784", "title": "", "text": "typical federal court guilty plea, the prosecutor gives a recitation of what the government would prove, and the defendant expressly accepts the government’s version of events (possibly with qualifications), and the judge then determines that the admitted facts if proved would constitute an offense. This sequence, or any other that achieved the same effect, would give reasonable assurance that the defendant had confessed to certain events and that the events constituted a crime. 39 F.3d at 13. We also suggested a procedure that would not be “effectively an admission of guilt under the guidelines”: [I]n the hard-pressed conditions of a busy first-instance court, it is easy to imagine procedures that would give far less assurance. For aught we can tell, the prosecutor and the defendant or his counsel may do little more than tell the judge that the parties have agreed to dispose of the matter by a continuance, admission to sufficient facts, and a treatment program.... [S]uch a procedure ... would give one little confidence that the defendant had admitted to a crime. Indeed, it would approach the “diversion from the judicial process without a finding of guilt” that the guidelines say is “not counted.” U.S.S.G. § 4A1.2(f). Roberts, 39 F.3d at 13. In substance, these two scenarios provide some guidance that may help the district court — when more is known about the Rhode Island process — to decide whether admission to sufficient facts in the juvenile court should be viewed as the equivalent of a guilty plea or a nolo plea under U.S.S.G. § 4A1.2(a)(l). We are not, however, seeking narrowly to confine the district court’s inquiry: the phrase “admission to sufficient facts” does not necessarily mean the same thing in every context or jurisdiction, the Massachusetts two-step procedure appears to be unusual, and Roberts was not an attempt to create an all-encompassing formula. Both sides are free to produce information on remand about how the admission to sufficient facts procedure operates in Rhode Island juvenile courts in general, or with reference to the specific two' instances involved in this case (if information is available), or both." }, { "docid": "18949795", "title": "", "text": "“diversionary disposition,” nor did the drafters make it particularly clear what they intended to mean by that term. They offer one, and only one, example — a “deferred prosecution” — -which is certainly not exhaustive. U.S.S.G. § 4A1.2(f). And subsection 4A1.2(f) begins with a reference to “[djiversion from the judicial process.” In sum, on remand, the district court must first determine whether DiPina’s pri- or juvenile dispositions constituted diversions, such that subsection 4A1.2(f) applies. If so, because Family Court is the juvenile court in Rhode Island, these dispositions cannot be counted toward DiPina’s criminal history. If, on the other hand, DiPina’s prior juvenile dispositions were not diversionary dispositions, then the district court must determine whether his admitting sufficient facts in Rhode Island Family Court was tantamount to a plea of guilty or nolo under U.S.S.G. § 4A1.2(a)(l). That is, were those admissions the equivalent of the first Roberts scenario, where “the defendant ha[s] confessed to certain events” (or other evidence proves such events) “and ... the events constituted a crime”? Roberts, 39 F.3d at 13. If DiPina’s prior juvenile dispositions were not tantamount to a plea of guilty or nolo, then they may not be counted toward his criminal history. The sentence is vacated and the case is remanded to the district court for resen-tencing after making findings of fact and rulings of law consistent with this opinion. . DiPina satisfies the other four requirements of § 3553(f), so those are not at issue in this appeal. . The PSR listed the heroin offense as adding three points to DiPina's criminal history, but, prior to sentencing, the probation officer recognized that the charge should have added only two points. See U.S.S.G. § 4A1.2(d)(2). . There were other intermediate proceedings that are immaterial to this appeal: DiPina appealed his original sentence but the appeal was dismissed for lack of prosecution. DiPi-na filed a § 2255 petition based on ineffective assistance of counsel which, when it came to this court, we remanded to the district court for an evidentiary hearing. After holding a hearing, the district court vacated the original sentence and" }, { "docid": "13276972", "title": "", "text": "BOWNES, Senior Circuit Judge. This case returns to us after a remand to the district court for further consideration of the sentencing ramifications of defendant-appellant Jesús DiPinas juvenile criminal dispositions. See United States v. DiPina, 178 F.3d 68 (1st Cir.1999). On remand, the district court determined that DiPina’s admission of sufficient facts on juvenile heroin charges should count toward his criminal history under the United States Sentencing Guidelines, and that he was therefore ineligible for the safety valve provision. Accordingly, the court reimposed its previous sentence. We affirm. I. On November 22, 1994, DiPina pled guilty to possession with intent to distribute more than one hundred grams of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) (1994). He entered a plea agreement in which he agreed to plead guilty to the charge in exchange for the government’s promise to recommend that the district court impose the shortest term of imprisonment under the sentencing guidelines. The government also promised to recommend that DiPina receive the benefits of the “safety valve” provision, 18 U.S.C. § 3553(f), U.S.S.G. § 5C1.1 (1997), which would exempt him from the mandatory minimum sentence of five years’ imprisonment. The safety valve would only apply, however’, if DiPina did not have more than one criminal history point. The Presentence Investigation Report (PSR) prepared by the Probation Department described DiPina’s criminal record as including three juvenile dispositions, all in the Rhode Island Family Court: (1) tampering with a motor vehicle, “Admits Sufficient Facts, one year probation, special condition fifty-percent restitution”; (2) resisting arrest, “Nolo, 16 months probation”; and (3) unlawful delivery of heroin, “Admits Sufficient Facts, eighteen months Rhode Island Training School.” The district court counted each of these dispositions as a “prior sentence” under the sentencing guidelines. See U.S.S.G. §§ 4A1.2(a)(l), (d)(2). Accordingly, it found that DiPina had four criminal history points, placing him in criminal history category III. DiPina therefore was ineligible for the safety valve provision. On February 13, 1995, he was sentenced to the statutory minimum of five years in prison. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B). After some intermediate litigation not relevant to" } ]

[ { "docid": "22570256", "title": "", "text": "Me. Chief Justice Fullee, after making the above statement, delivered the opinion of the court. The bill alleged that defendants were about, under the charter of the city of St. Louis, and the ordinance authorizing and directing the improvement in question, to impose the cost thereof upon the several lots of ground adjoining the improvement, in the proportion that the frontage of each lot bore to the total frontage thereon. And it was admitted that the various lots of land threatened with assessment were owned in severalty; that no one complainant was interested in the lot of any other; and that the assessment against no one lot would amount to two thousand dollars. We think that the Circuit Court rightly held that it was without jurisdiction under the circumstances. The general rule was thus stated by Mr. Justice Bradley in Clay v. Field, 138 U. S. 464, 479: “ The general principle observed in all is, that if several persons be joined in a suit in equity or admiralty, and have a common and undivided interest, though separable as between themselves, the amount of their joint claim or liability will be the test of jurisdiction ; but where their interests are distinct, and they are joined for the sake of convenience only, and because they form a class of parties whose rights or liabilities arose out of the same transaction, or have relation to a common fund or mass of property sought to be administered, such distinct demands or liabilities cannot be aggregated together for the purpose of giving this court jurisdiction by appeal, but each must stand or fall by itself alone.” Accordingly it has often been held that the distinct and separate interests of complainants in a suit for relief against assessments cannot be united for the purpose of making up the amount necessary to give this court or the Circuit Court jurisdiction. Ogden City v. Armstrong, 168 U. S. 224; Russell v. Stansell, 105 U. S. 303; Walter v. Northeastern Railroad Company, 147 U. S. 370. The “ matter in dispute ” within the meaning of the" } ]

[ { "docid": "22647462", "title": "", "text": "§ 1332 (a). The same jurisdictional-amount requirement has applied when the general federal-question jurisdiction of the district courts, 28 U. S. C. § 1331 (a), is sought to be invoked. A classic statement of the dichotomy that developed in construing and applying these sections is found in Troy Bank v. G. A. Whitehead & Co., 222 U. S. 39, 40-41 (1911): “When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy-in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.” This distinction and rule that multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional-amount requirement for suit in the federal courts were firmly rooted in prior cases dating from 1832, and have continued to be the accepted construction of the controlling statutes, now §§ 1331 and 1332. The rule has been applied to forbid aggregation of claims where none of the claimants satisfies the jurisdictional amount, as was the case in Scott v. Frazier, 253 U. S. 243, 244 (1920), for example, where the Court stated the rule to be that “the amount in controversy must equal the jurisdictional sum as to each complainant.” It also requires dismissal of those litigants whose claims do not satisfy the jurisdictional amount, even though other litigants assert claims sufficient to invoke the jurisdiction of the federal court. Clark v. Paul Gray, Inc., 306 U. S. 583 (1939); Stewart v. Dunham, 115 U. S. 61, 64-65 (1885); Bernards Township v. Stebbins, 109 U. S. 341, 355 (1883). In Clark v. Paul Gray, Inc., decided after the effective date of the Federal Rules of Civil Procedure in 1938, the Court applied the familiar rule that “when several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount . . . , and . ." }, { "docid": "8640508", "title": "", "text": "exacted fees for each automobile driven into that Staté for sale. Injunctive relief was demanded, and granted by a three-judge court, which found that the amount involved, as alleged in the complaint, exceeded $3,000, exclusive of interest and costs. In that court defendants, had filed a motion' to' dismiss the bill for lack of jurisdiction, but later dismissed the- motion, and did not challenge jurisdiction in the Supreme Court. The latter court, sua sponte, raised the question and reversed, instructing the lower court to dismiss on the merits as to Paul Gray, Inc., and to dismiss as to all other plaintiffs for want of jurisdiction because of lack of the proper amount involved. It held that there was not shown any joint or common interest of the plaintiffs in the subject matter, and cited to that point Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111, which was decided the same day. The Gray case [306 U.S. 583, 59 S.Ct. 748, 83 L.Ed. 1001] referred to the “ * * * familiar rule that whén several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court, and that those amounts cannot be added together to satisfy jurisdictional requirements. * * * ” citing among other cases Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817. Appellant also relies on the Pinel case. There two plaintiffs, not claiming to represent a class, each suing for himself upon a separate and distinct demand, joined in the same complaint, but did not show the requisite jurisdictional amount as to either. The court merely held that jurisdiction was lacking, and of course it was an apt citation to the “familiar rule” referred to in the Gray case. In the Hague case other points than the oné now before us were also in issue, most of which constitute the bases for most of the various opinions there promulgated. However, the question of jurisdiction was raised in the" }, { "docid": "22786514", "title": "", "text": "equal protection or due process. JURISDICTION OF THE DISTRICT COURT. A motion of appellants in the court below to dismiss the bill of complaint for want of the jurisdictional amount was withdrawn, and the jurisdiction of the.district court is not challenged here. But on the argument, it appearing doubtful whether the “matter in controversy” exceeded “the sum or value of” $3,000, § 24(1) of the Judicial Code; 28 U. S. C. § 41 (1), we raised the question whether the jurisdictional amount was involved, as was our duty. Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, 382; Stratton v. St. Louis Southwestern Ry. Co., 282 U. S. 10, 13; St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 287, note 10. The bill of complaint alleges generally that “the amount involved in this litigatiQn is in excess of Three Thousand Dollars ($3,000.00), exclusive of interest and costs.” ' But it is plain that this allegation is insufficient to satisfy jurisdictional requirement's where there are numerous plaintiffs having no joint or common interest or title in the subject matter of the suit. As the bill of complaint shows on its face, and as the findings establish, each appellee maintains his own separate and independent business, which is said to be affected by the challenged fees. No joint or common interest of appellees in the subject matter of the suit is shown. Cf. Gibbs v. Buck, 307 U. S. 66. It is a familiar rule that when several plaintiffs assert separate and distinct demands in a single suit; the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court, and that those amounts cannot be added together to satisfy jurisdictional 'requirements. Wheless v. St. Louis, 180 U. S. 379; Rogers v. Hennepin County, 239 U. S. 621; Pinel v. Pinel, 240 U. S. 594; Scott v. Frazier, 253 U. S. 243. The general allegation in the bill of complaint that “the amount involved in this litigation is in excess of” $3,000 and" }, { "docid": "22550539", "title": "", "text": "embodied in an Act of Congress, as unaffected by the subsequent amendment of Rule 23, and as immune from judicial re-examination because any change would be an impermissible expansion of the jurisdiction of the courts. None of these premises is correct. I. Since the first Judiciary Act, Congress has included in certain grants of jurisdiction to the federal courts— notably the grants of jurisdiction based on diversity of citizenship and the later-established grant of a general jurisdiction to consider cases raising federal questions — a requirement that the “matter in controversy” exceed a stated amount of money. Congress has never expanded or explained the bare words of these successive jurisdictional amount statutes. Over the years the courts themselves have developed a detailed and complex set of rules for determining when the jurisdictional amount requirements are met. Among these rules is the proposition that multiple parties cannot aggregate their “separate and distinct” claims to reach the jurisdictional amount. E. g., Troy Bank v. Whitehead & Co., 222 U. S. 39, 40 (1911); Oliver v. Alexander, 6 Pet. 143, 147 (1832). Applying that general principle to traditional property law concepts, the courts developed the more specialized rule that multiple parties who asserted very similar legal claims could not aggregate them to make up the jurisdictional amount if their interests, however similar in fact, were in legal theory “several,” e. g., Pinel v. Pinel, 240 U. S. 594 (1916), but that such aggregation was permissible where the parties claimed undivided interests in a single “joint” right. E. g., Texas & Pacific R. Co. v. Gentry, 163 U. S. 353 (1896); Shields v. Thomas, 17 How. 3 (1855). This general aggregation rule, and its much later application to class actions, rest entirely on judicial decisions, not on any Act of Congress. There is certainly no reason the specific application of this body of federal decisional law to class actions should be immune from re-evaluation after a fundamental change in the structure of federal class actions has made its continuing application wholly anomalous. The majority rather half-heartedly suggests that this judicial interpretation of the jurisdictional" }, { "docid": "22550526", "title": "", "text": "actions, it must now be permitted in all class actions under the new Rule. We disagree and conclude, as did the Courts of Appeal for the Fifth and Eighth Circuits, that the adoption of amended Rule 23 did not and could not have brought about this change in the scope of the con-gressionally enacted grant of jurisdiction to the district courts. The doctrine that separate and distinct claims could not be aggregated was never, and is not now, based upon the categories of old Rule 23 or of any rule of procedure. That doctrine is based rather upon this Court’s interpretation of the statutory phrase “matter in controversy.” The interpretation of this phrase as precluding aggregation substantially predates the 1938 Federal Rules of Civil Procedure. In 1911 this Court said in Troy Bank v. Whitehead & Co.: “When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount . . . .” 222 U. S. 39, 40. By 1916 this Court was able to say in Pinel v. Pinel, 240 U. S. 594, that it was “settled doctrine” that separate and distinct claims could not be aggregated to meet the required jurisdictional amount. In Clark v. Paul Gray, Inc., 306 U. S. 583 (1939), this doctrine, which had first been declared in cases involving joinder of parties, was applied to class actions under the then recently passed Federal Rules. In that case numerous individuals, partnerships, and corporations joined in bringing a suit challenging the validity of a California statute which exacted fees of $15 on each automobile driven into the State. Raising the jurisdictional amount question sua sponte, this Court held that the claims of the various fee payers could not be aggregated “where there are numerous plaintiffs having no joint or common interest or title in the subject matter of the suit.” 306 U. S., at 588. Nothing in the amended Rule 23 changes this doctrine. The class action plaintiffs in the two cases before us argue" }, { "docid": "3831893", "title": "", "text": "claims, the amount in dispute is not sufficient to confer jurisdiction. But the substantial matter in controversy, as appears upon the face of the complaint, is not the aggregate claims, but the individual claim of each complainant, which is separate and distinct each from the other, and they are only joined together in this suit because it is convenient to so combine them, and appears to give the court jurisdiction of the cause. -There is no unity of interest in the separate claims, and the most that can be said is that they belong to a class having the same general character. This is not'sufficient. In Clay v. Field, 138 U. S. 464, 479, 11 Sup. Ct. 419, 425 (34 L. Ed. 1044), Mr. Justice Bradley said: “The general principle observed in 'all is that if persons be joined in a suit in equity or admiralty, and have a common and undivided interest, though separable as between themselves, the amount of their joint claim or liability will be the test of jurisdiction; but where their interests are distinct, and they are joined for the sake of convenience only, and because they form a class of parties whose rights or liabilities arose out of the same transaction, or have relation to a common fund or mass of property sought to be administered, such distinct demands or liabilities cannot be aggregated together ior the purpose of smug this court jurisdiction by appeal, but each must stand or fail by itself alone.” In Troy Bank v. Whitehead & Co., 222 U. S. 39, 40, 32 Sup. Ct. 9, (56 L. Ed. 81), the court said: \"When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount.” As the demand of each of the complainants in this case is fixed by the complain! at the annual compensation of $780, it is clear that the amount involved is not sufficient to give this court jurisdiction of the cause. The jurisdiction of the court" }, { "docid": "17072271", "title": "", "text": "28 U.S.C. § 1332(a) (1994 & Supp. II 1996). Thus, in diversity cases a federal court cannot exercise supplemental jurisdiction over a claim unless it first has original jurisdiction over a civil action “between citizens of different states” in which the “matter in controversy” exceeds $75,000. Section 1332 does not itself state whether each plaintiff in a diversity case must be a citizen of a different state from each defendant, or if only one plaintiff need be of diverse citizenship. Nor does § 1332 state whether each plaintiff in a diversity suit must have a claim in which at least $75,000 is “in controversy,” or if all of the plaintiffs’ claims may be aggregated to reach the jurisdictional amount, or if only one plaintiff need satisfy the “matter in controversy” requirement. Since the earliest years of the Republic, however, the Supreme Court has interpreted the diversity jurisdiction statute to require complete diversity of citizenship of each plaintiff from each defendant. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). Moreover, it has long been the rule that each plaintiff in a diversity suit must independently satisfy the diversity statute’s jurisdictional amount in controversy. See Clark v. Paul Gray, Inc., 306 U.S. 583, 589, 59 S.Ct. 744, 83 L.Ed. 1001 (1939) (“when several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court”); Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817 (1916) (same); Troy Bank v. Whitehead & Co., 222 U.S. 39, 40, 32 S.Ct. 9, 56 L.Ed. 81 (1911) (same). The Court has reasoned that § 1332’s two requirements— “diversity” and “matter in controversy”— are jurisdictional, and the statute’s grant of “original jurisdiction” to federal courts depends upon each and every plaintiff satisfying each of those requirements. The Supreme Court has also held that § 1332’s dual requirements generally apply in diversity-based class actions. Thus, in Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 366-67, 41 S.Ct. 338," }, { "docid": "22550527", "title": "", "text": "U. S. 39, 40. By 1916 this Court was able to say in Pinel v. Pinel, 240 U. S. 594, that it was “settled doctrine” that separate and distinct claims could not be aggregated to meet the required jurisdictional amount. In Clark v. Paul Gray, Inc., 306 U. S. 583 (1939), this doctrine, which had first been declared in cases involving joinder of parties, was applied to class actions under the then recently passed Federal Rules. In that case numerous individuals, partnerships, and corporations joined in bringing a suit challenging the validity of a California statute which exacted fees of $15 on each automobile driven into the State. Raising the jurisdictional amount question sua sponte, this Court held that the claims of the various fee payers could not be aggregated “where there are numerous plaintiffs having no joint or common interest or title in the subject matter of the suit.” 306 U. S., at 588. Nothing in the amended Rule 23 changes this doctrine. The class action plaintiffs in the two cases before us argue that since the new Rule will include in the judgment all members of the class who do not ask to be out by a certain date, the “matter in controversy” now encompasses all the claims of the entire class. But it is equally true that where two or more plaintiffs join their claims under the joinder provisions of Rule 20, each and every joined plaintiff is bound by the judgment. And it was in joinder cases of this very kind that the doctrine that distinct claims could not be aggregated was originally enunciated. Troy Bank v. Whitehead & Co., 222 U. S. 39 (1911); Pinel v. Pinel, 240 U. S. 594 (1916). The fact that judgments under class actions formerly classified as spurious may now have the same effect as claims brought under the joinder provisions is certainly no reason to treat them differently from joined actions for purposes of aggregation. Any change in the Rules that did purport to effect a change in the definition of “matter in controversy” would clearly conflict with the" }, { "docid": "22120406", "title": "", "text": "the assignees jointly brought this suit to enforce the vendor’s lien. They and their assignor were citizens of Indiana, and the defendant, who acquired the land with notice of the lien, was a citizen of Kentucky. By a demurrer to the bill the defendant challenged the jurisdiction of the Circuit Court, upon the ground that the matter in dispute was not of the requisite jurisdictional value; and the court, being of opinion that such value was not to be measured by the extent to which the plaintiffs collectively were seeking to enforce the lien as a common security, but by the extent to which each was interested in its enforcement, sustained the demurrer and dismissed the bill for want of jurisdiction. 184 Fed. Rep. 932. The plaintiffs then appealed directly to this court, and the Circuit Court appropriately certified the question of jurisdiction. Act of March 3, 1891,, c. 517, § 5, 26 Stat. 826. When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a singlé suit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount. Shields v. Thomas, 17 How. 3; Rodd v. Heartt, 17 Wall. 354; Davies v. Corbin, 112 U. S. 36, 40; Gibson v. Shufeldt, 122 U. S. 27; New Orleans Pacific Railway Co. v. Parker, 143 U. S. 42; Walter v. Northeastern Railroad Co., 147 U. S. 370, 373; Davis v. Schwartz, 155 U. S. 631, 647; Illinois Central Railroad Co. v. Adams, 180 U. S. 28. The present suit is of the latter class. Its controlling object — that which makes it cognizable in equity — is the enforcement of the vendor’s lien, which is a single thing or entity in which the plaintiffs have a common and undivided interest, and which neither can enforce in the absence of the other. Thus, while their claims under the notes were separate" }, { "docid": "22647474", "title": "", "text": "their respective “matters in dispute” to bring an appeal to this Court. See, e. g., Stewart v. Dunham, 115 U. S. 61, 64-65 (1885) (and cases cited therein). The original Alexander construction of our appellate jurisdiction was applied to the jurisdictional-amount requirement for federal trial courts in Walter v. Northeastern R. Co., 147 U. S. 370, 373 (1893): “Is the plaintiff entitled to join [all his actions] in a single suit in a Federal court, and sustain the jurisdiction by reason of the fact that the total amount involved exceeds $2,000? We think not. It is well settled in this court that when two or more plaintiffs, having several interests, unite for the convenience of litigation in a single suit, it can only be sustained in the court of original jurisdiction, or on appeal in this court, as to those whose claims exceed the jurisdictional amount; and that when two or more defendants are sued by the same plaintiff in one suit the test of jurisdiction is the joint or several character of the liability to the plaintiff.” Rogers v. Hennepin County, 329 U. S. 621 (1916); Title Guaranty Co. v. Allen, 240 U. S. 136 (1916); Pinel v. Pinel, 240 U. S. 594, 596 (1916); Scott v. Frazier, 253 U. S. 243, 244 (1920); Clark v. Paul Gray, Inc., 306 U. S. 583 (1939). Rule 23 (a)(3) provided: “If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is “(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.” “The spurious class suit was a permissive joinder device. . . . “There was no jural relationship between the members of the class; unlike, for example, the members of an unincorporated association, they had taken no steps to create" }, { "docid": "22382753", "title": "", "text": "does not support the allegations as to jurisdictional amount. And our review of the District Court’s determination of the jurisdictional amount must be confined to this record. Henneford v. Northern Pacific Ry. Co., 303 U. S. 17, 19; Clark v. Paul Gray, Inc., 306 U.S. 583, 589-90. Since the record does not contain the various agreements upon which the plaintiffs’ action is founded, there is no basis for determining whether this is a suit “in which several plaintiffs, having a common undivided interest, unite to enforce a single title or right, and in which it is enough that their interests collectively equal the jurisdictional amount,” Lion Bonding Co. v. Karatz, 262 U. S. 77, 86; see Shields v. Thomas, 17 How. 3, 5; Troy Bank v. Whitehead & Co., 222 U. S. 39, 40-41; Gibbs v. Buck, 307 U. S. 66, 74-75, or one in which “the matters in dispute are separate and distinct, and are joined in one suit for convenience or economy,” Davis v. Schwartz, 155 U. S. 631, 647; see Clay v. Field, 138 U. S. 464, 479-80; Russell v. Stansell, 105 U. S. 303. Aggregation of plaintiffs’ claim cannot be made merely because the claims are derived from a single instrument, Pinel v. Pinel, 240 U. S. 594, or because the plaintiffs have a community of interest, Clark v. Paul Gray, Inc., 306 U. S. 583. In a diversity litigation the value of the “matter in controversy” is measured not by the monetary result of determining the principle involved, but by its pecuniary consequence to those involved in the litigation. Wheless v. St. Louis, 180 U. S. 379, 382; Oliver v. Alexander, 6 Pet. 143, 147. The record contains no showing of the requisite jurisdictional amount, and the District Court was therefore without jurisdiction. The judgment will be reversed and the cause remanded to the District Court without prejudice to an application for leave to amend the bill of complaint. Reversed. Mr. Justice Roberts took no part in the consideration or decision of this case." }, { "docid": "22382752", "title": "", "text": "purposes of determining the value of the matter in controversy. The Court stated that, although it found the com plaint “very difficult of analysis,” it had construed it “most favorably to the pleader, for the purpose of passing on the sole question of jurisdiction raised on the appeal.” 119 F. 2d 105, 108. We brought the case here, 314 U. S. 590, in view of the important question affecting the jurisdiction of the district courts. The policy of the statute conferring diversity jurisdiction upon the district courts calls for its strict construction. Healy v. Ratta, 292 U. S. 263, 270; and see Elgin v. Marshall, 106 U. S. 578, 580. Accordingly, if a plaintiff’s allegations of jurisdictional facts are challenged by the defendant, the plaintiff bears the burden of supporting the allegations by competent proof. McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 188-89; KVOS, Inc. v. Associated Press, 299 U. S. 269, 278; Gibbs v. Buck, 307 U. S. 66, 72. The bill must be dismissed if the evidence in the record does not support the allegations as to jurisdictional amount. And our review of the District Court’s determination of the jurisdictional amount must be confined to this record. Henneford v. Northern Pacific Ry. Co., 303 U. S. 17, 19; Clark v. Paul Gray, Inc., 306 U.S. 583, 589-90. Since the record does not contain the various agreements upon which the plaintiffs’ action is founded, there is no basis for determining whether this is a suit “in which several plaintiffs, having a common undivided interest, unite to enforce a single title or right, and in which it is enough that their interests collectively equal the jurisdictional amount,” Lion Bonding Co. v. Karatz, 262 U. S. 77, 86; see Shields v. Thomas, 17 How. 3, 5; Troy Bank v. Whitehead & Co., 222 U. S. 39, 40-41; Gibbs v. Buck, 307 U. S. 66, 74-75, or one in which “the matters in dispute are separate and distinct, and are joined in one suit for convenience or economy,” Davis v. Schwartz, 155 U. S. 631, 647; see Clay v." }, { "docid": "22910098", "title": "", "text": "single suit, it can only be sustained in the court of original jurisdiction, or on appeal in this court, as to those whose claims exceed the jurisdictional amount; and that when two or more defendants are sued by the same plaintiff in one suit the test of jurisdiction is the joint or several character of the liability to the plaintiff. This was the distinct ruling of this court in Seaver v. Bigelows, 5 Wall. 208 ; Russell v. Stansell, 105 U. S. 303 ; Farmers' Loan and Trust Co. v. Waterman, 106 U. S. 265; Hawley v. Fairbanks, 108 U. S. 513; Stewart v. Dunham, 115 U. S. 61; Gibson v. Shufeldt, 122 U. S. 27 ; Clay v. Field, 138 U. S. 464. As illustrative of the rule as applied to cases of joint defendants, it was held in Stratton v. Jarvis, 8 Pet. 4, that, where a libel for salvage was filed against several packages of .merchandise, and a decree was rendered against ¿aeh consignment for an amount not sufficient in itself to authorize an appeal by any one claimant, the appeal of each claimant must be treated as a separate one, and, the amount in each case being insufficient, this court had no jurisdiction of the appeal of any claimant. A similar ruling was made in Spear v. Place, 11 How. 522. In Paving Co. v. Mulford, 100 U. S. 117, a bill, filed against two defendants, alleging that each held certificates of indebtedness belonging to the plaintiff, was dismissed on final hearing, and plaintiff appealed, and it was held that, as the recovery, if any, must be against the defendants severally, and as the amount claimed from each did not exceed the requisite 'sum, this court had no jurisdiction. In Schwed v. Smith, 106 H. S. 188, 190, certain creditors recovered separate judgments against a debtor amounting in the aggregate to more than $5000, but none of which exceeded that sum, and filed a bill against him and a preferred creditor to subject to the payment of their judgment goods which had been seized upon a" }, { "docid": "22647472", "title": "", "text": "45 Cong. Rec. 3596-3599 (1910); 46 Cong. Rec. 4002, 4003, 4004 (1911). The current $10,000 jurisdictional amount, codified in 28 U. S. C. § 1332 (a), was enacted by the Act of July 25, 1958, 72 Stat. 415. The legislative history discloses that the change was made “on the premise that the amount should be fixed at a sum of money that will make jurisdiction available in all substantial controversies where other elements of Federal jurisdiction are present. The jurisdictional amount should not be so high as to convert the Federal courts into courts of big business nor so low as to fritter away their time in the trial of petty controversies.” S. Rep. No. 1830, 85th Cong., 2d Sess., 3-4 (1958); see also id., at 21; H. R. Rep. No. 1706, 85th Cong., 2d Sess., 3 (1958). Section 1331 (a) provides: “(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.” The following are representative of innumerable eases confirming this principle: Woodside v. Beckham, 216 U. S. 117 (1910); Waite v. Santa Cruz, 184 U. S. 302, 328-329 (1902); Wheless v. St. Louis, 180 U. S. 379, 382 (1901); Bernards Township v. Stebbins, 109 U. S. 341, 355 (1883). Cf. Clay v. Field, 138 U. S. 464 (1891); Russell v. Stansell, 105 U. S. 303 (1882); Seaver v. Bigelows, 5 Wall. 208 (1867); Stratton v. Jarvis, 8 Pet. 4 (1834); Oliver v. Alexander, 6 Pet. 143 (1832). Snyder v. Harris, 394 U. S. 332 (1969), noted that the judicial interpretation of “matter in controversy” to bar aggregation of separate and distinct claims dated back to at least Oliver v. Alexander, which is representative of the unbroken line of decisions of this Court interpreting our appellate jurisdiction when that jurisdiction was confined to review of lower court decisions in which the “matter in dispute” exceeded a designated monetary amount. Consistently, plaintiffs with separate and distinct claims could not aggregate" }, { "docid": "13464467", "title": "", "text": "ask for profits, it is clear that the difference between what it paid and what it would be allowed to sell for, plus evidence that there was a ready market in which it could resell, would form an appropriate measure of damages. We do not mean to say that a plaintiff buyer can recover prospective profits at its option. The usual measure of damages is established by the statute as already stated. But if the plaintiff proves lack of a market where it can get the goods from another, it is thrown perforce to a more elaborate measure of damages. We think the trial court unduly restricted the plaintiff in its attempt to prove its case in this instance. The judgment of the District Court is reversed and the case remanded for a new trial. Thomson v. Gaskill, 1942, 315 U.S. 442, 447, 62 S.Ct. 673, 675, 86 L.Ed. 951: “In a diversity litigation the value of the ‘matter in controversy’ is measured not by the monetary result of determining the principle involved, but by its pecuniary consequence to those involved in the litigation. Wheless v. St. Louis, 180 U.S. 379, 382, 21 S.Ct. 402, 403, 45 L.Ed. 583; Oliver v. Alexander, 6 Pet. 143, 147, 8 L.Ed. 349.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 288, 58 S. Ct. 586, 590, 82 L.Ed. 845: ‘‘The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim.” Henneford et al. v. Northern Pacific Railway Co., 1938, 303 U.S. 17, 19, 58 S.Ct. 415, 417," }, { "docid": "22786516", "title": "", "text": "the finding of the court that “the amount involved in the within action” exceeds the jurisdictional amount, give no indication that the amount in •controversy with respect to the claim of any single plaintiff exceeds the jurisdictional amount and are insufficient to show that the district court had jurisdiction of the cause. Pinel v. Pinel, supra. Examination of the record shows that only in the case of a single appellee,' Paul Gray, Inc., is there any allegation or proof tending to show the amount in controversy. As to it the bill of complaint alleges that “it causes to be caravaned into the- said state . '. . approximately one hundred fifty (150) automobiles'each year.” This allegation is supported by evidence that this appellee is regularly engaged in the business and tending to show that its volume exceeded that amount when the act went into effect July 2, 1937. Since the amount in controversy in a suit to restrain illegal imposition of fees or taxes is the amount of the fees or taxes which would normally be collected during the. period of the litigation, Healy v. Ratta, 292 U. S. 263, we cannot say, upon this state of the record, that jurisdiction was not established as to appellee Paul Gray, Inc. We ignore affidavits filed here for the purpose of supplementing the record by showing the amount in controversy as to another appellee. While it has been the prac tice of this Court to receive affidavits for the purpose of establishing its own appellate jurisdiction under statutes prescribing that a specified amount in controversy is prerequisite to the appeal, Williamson v. Kincaid, 4 Dall. 20; Rush v. Parker, 5 Cranch 287; Roura v. Philippine Islands, 218 U. S. 386; see Red River Cattle Co. v. Needham, 137 U. S. 632, that procedure is inapplicable here. Our review of the action of the district court in assuming jurisdiction is confined to the record before the district court. Henneford v. Northern Pacific Ry. Co., 303 U. S. 17. Proper practice requires that where each of several plaintiffs is bound to establish the jurisdictional" }, { "docid": "22647473", "title": "", "text": "Constitution, laws, or treaties of the United States.” The following are representative of innumerable eases confirming this principle: Woodside v. Beckham, 216 U. S. 117 (1910); Waite v. Santa Cruz, 184 U. S. 302, 328-329 (1902); Wheless v. St. Louis, 180 U. S. 379, 382 (1901); Bernards Township v. Stebbins, 109 U. S. 341, 355 (1883). Cf. Clay v. Field, 138 U. S. 464 (1891); Russell v. Stansell, 105 U. S. 303 (1882); Seaver v. Bigelows, 5 Wall. 208 (1867); Stratton v. Jarvis, 8 Pet. 4 (1834); Oliver v. Alexander, 6 Pet. 143 (1832). Snyder v. Harris, 394 U. S. 332 (1969), noted that the judicial interpretation of “matter in controversy” to bar aggregation of separate and distinct claims dated back to at least Oliver v. Alexander, which is representative of the unbroken line of decisions of this Court interpreting our appellate jurisdiction when that jurisdiction was confined to review of lower court decisions in which the “matter in dispute” exceeded a designated monetary amount. Consistently, plaintiffs with separate and distinct claims could not aggregate their respective “matters in dispute” to bring an appeal to this Court. See, e. g., Stewart v. Dunham, 115 U. S. 61, 64-65 (1885) (and cases cited therein). The original Alexander construction of our appellate jurisdiction was applied to the jurisdictional-amount requirement for federal trial courts in Walter v. Northeastern R. Co., 147 U. S. 370, 373 (1893): “Is the plaintiff entitled to join [all his actions] in a single suit in a Federal court, and sustain the jurisdiction by reason of the fact that the total amount involved exceeds $2,000? We think not. It is well settled in this court that when two or more plaintiffs, having several interests, unite for the convenience of litigation in a single suit, it can only be sustained in the court of original jurisdiction, or on appeal in this court, as to those whose claims exceed the jurisdictional amount; and that when two or more defendants are sued by the same plaintiff in one suit the test of jurisdiction is the joint or several character of the liability" }, { "docid": "6175361", "title": "", "text": "For the reasons that follow, we disagree. 1. Aggregation in General The rule against aggregating the claims of multiple plaintiffs for purposes of determining the amount in controversy dates back at least to 1832. See Oliver v. Alexander, 31 U.S. (6 Pet.) 143, 148, 8 L.Ed. 349 (1832). More recently, in 1911, the Supreme Court held that two plaintiffs could not aggregate their claims arising out of distinct promissory notes payable to each plaintiff by the defendant. See Troy Bank v. G.A. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81 (1911). In the Court’s words, “[w]hen two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount.” Id. at 40, 32 S.Ct. 9. The Court in Troy Bank also recognized an exception to the anti-aggregation rule that was nearly as old as the rule itself. “[W]hen several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.” Id. at 40—41, 32 S.Ct. 9 (citing Shields v. Thomas, 58 U.S. (17 How.) 3, 4-5 (1854)). Based on the exception, the Court held in Troy Bank that the two plaintiffs could aggregate their claims based on a vendor’s lien that they owned jointly. See Troy Bank, 222 U.S. at 41, 32 S.Ct. 9; see also Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817 (1916). In Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), the Supreme Court rejected an argument that recent amendments to Rule 23 had changed the rule to allow aggregation in class actions. It reiterated that aggregation to meet the amount-in-controversy requirement was permissible only “(1) in cases in which a single plaintiff seeks to aggregate two or more of his own claims against a single defendant and (2) in cases in" }, { "docid": "22910097", "title": "", "text": "the county authorities for local purposes. -'Úhdér these circumstances, it is entirely clear that, had these taxes been paid under protest and the plaintiff had sought to recover; them back, it would- have been' obliged to bring séparate actions in each county.. As the amount recoverable from each county would be different, no joint judgment could possibly be'rendered. So, had a bill for injunction been filed in a state court, and • the practice had permitted, as in some States, a chancery subpoena to be served in any county of the State, these defendants could not' have been joined in one bill,' but a separate bill would have had to be filed in each county; ■ Is the plaintiff entitled to join them all in a single suit in a Federal court, and sustain the jurisdiction by reason of the fact that the total amount involved exceeds $2000? ¥e think not. It is well' settled in this court that when two or more plaintiffs, having several interests, unite for the convenience of litigation in a single suit, it can only be sustained in the court of original jurisdiction, or on appeal in this court, as to those whose claims exceed the jurisdictional amount; and that when two or more defendants are sued by the same plaintiff in one suit the test of jurisdiction is the joint or several character of the liability to the plaintiff. This was the distinct ruling of this court in Seaver v. Bigelows, 5 Wall. 208 ; Russell v. Stansell, 105 U. S. 303 ; Farmers' Loan and Trust Co. v. Waterman, 106 U. S. 265; Hawley v. Fairbanks, 108 U. S. 513; Stewart v. Dunham, 115 U. S. 61; Gibson v. Shufeldt, 122 U. S. 27 ; Clay v. Field, 138 U. S. 464. As illustrative of the rule as applied to cases of joint defendants, it was held in Stratton v. Jarvis, 8 Pet. 4, that, where a libel for salvage was filed against several packages of .merchandise, and a decree was rendered against ¿aeh consignment for an amount not sufficient in itself to" }, { "docid": "22786515", "title": "", "text": "having no joint or common interest or title in the subject matter of the suit. As the bill of complaint shows on its face, and as the findings establish, each appellee maintains his own separate and independent business, which is said to be affected by the challenged fees. No joint or common interest of appellees in the subject matter of the suit is shown. Cf. Gibbs v. Buck, 307 U. S. 66. It is a familiar rule that when several plaintiffs assert separate and distinct demands in a single suit; the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court, and that those amounts cannot be added together to satisfy jurisdictional 'requirements. Wheless v. St. Louis, 180 U. S. 379; Rogers v. Hennepin County, 239 U. S. 621; Pinel v. Pinel, 240 U. S. 594; Scott v. Frazier, 253 U. S. 243. The general allegation in the bill of complaint that “the amount involved in this litigation is in excess of” $3,000 and the finding of the court that “the amount involved in the within action” exceeds the jurisdictional amount, give no indication that the amount in •controversy with respect to the claim of any single plaintiff exceeds the jurisdictional amount and are insufficient to show that the district court had jurisdiction of the cause. Pinel v. Pinel, supra. Examination of the record shows that only in the case of a single appellee,' Paul Gray, Inc., is there any allegation or proof tending to show the amount in controversy. As to it the bill of complaint alleges that “it causes to be caravaned into the- said state . '. . approximately one hundred fifty (150) automobiles'each year.” This allegation is supported by evidence that this appellee is regularly engaged in the business and tending to show that its volume exceeded that amount when the act went into effect July 2, 1937. Since the amount in controversy in a suit to restrain illegal imposition of fees or taxes is the amount of the fees or taxes which would normally" } ]

[ { "docid": "6423971", "title": "", "text": "Tuffs College, 1 Cir. 1980, 613 F.2d 1200, 1202 & n.1, and on which, before Brown, the Supreme Court had at least once declined to rule. See Drew v. Liberty Mutual Ins. Co., 5 Cir. 1973, 480 F.2d 69, cert. denied, 1974, 417 U.S. 935, 94 S.Ct. 2650, 41 L.Ed.2d 239. We cannot believe that, by referring to the exhaustion requirement in an unrelated context, the Court intended to decide the issue in Brown. . The appellant, at oral argument, called the Court’s attention to Murry v. American Standard, Inc., 5 Cir. 1973, 488 F.2d 529, which held that irreparable harm is not a prerequisite to preliminary injunctive relief under Title VII. More recent cases decided by this Court have recognized, however, that a later Supreme Court decision, Sampson v. Murray, 1974, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166, changed that rule, at least insofar as federal employees are concerned. E.g., Garza v. Texas Educ. Foundation, Inc., 5 Cir. 1978, 565 F.2d 909; Morgan v. Fletcher, 5 Cir. 1975, 518 F.2d 236; Parks v. Dunlop, 5 Cir. 1975, 517 F.2d 785. Those cases have found that irreparable injury is an essential prerequisite to preliminary injunctive relief for federal employees under Title VII." } ]

[ { "docid": "23635228", "title": "", "text": "however, that Sampson changed the rule “at least insofar as federal employees are concerned.” Porter v. Adams, 639 F.2d 273, 278 n. 8 (5th Cir.1981). The Second Circuit has also indicated that the Sampson standards apply in Title VII cases. Stewart v. INS, 762 F.2d 193, 199 (2d Cir.1985). In our decision in EEOC v. Pacific Press Publishing Association, 535 F.2d 1182 (9th Cir.1976), we stated that the EEOC is not required to show irreparable harm in order to obtain an injunction against a private employer. Id. at 1187. We commented, however, that under Sampson a private litigant does have some burden of showing irreparable harm. Id. We quoted Sampson with approval for the proposition that “ 'temporary loss of income, ultimately to be recovered does not usually constitute irreparable injury.’ ” Id. at 1187, quoting Sampson v. Murray, 415 U.S. at 90, 94 S.Ct. at 952. One principle which seems to emerge with some degree of clarity from this history is that if the standards of Sampson apply in a Title VII case against the government, then a plaintiff able to show only economic loss as the result of discharge would rarely prevail in a claim for injunctive relief to retain employment. Applying Sampson to a case involving only such economic loss, we would uphold a district court’s denial of equitable relief. This case, however, involves more than a claim of harm to the plaintiff and his family as the result of the termination. The claimed violation of the law in this case is retaliatory action for the exercise of Title VII rights, action which, if plaintiff is correct, will have a deleterious effect on the exercise of these rights by others. That the chilling effect of retaliatory activity can constitute irreparable harm has been recognized by the Second Circuit. In Holt v. Continental Group, Inc., 708 F.2d at 91, it stated: A retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights under the Act or from providing testimony for the plaintiff in her effort to protect her own rights." }, { "docid": "7993073", "title": "", "text": "Proof of monetary loss, alone, may not be sufficient to carry the burden of persuasion. In Morgan v. Fletcher, 518 F.2d 236 (5th Cir. 1975), the Court held that a District Court’s partial predication of irreparable injury on the loss of 45% of the family income was erroneous. Plaintiff in that case sought injunctive relief to prevent her employer, a government agency, from firing her until she had been given a full hearing by that agency. The District Court granted a preliminary injunction and the Fifth Circuit reversed, saying that Plaintiff made no showing of irreparable injury sufficient to support the injunction. In its discussion on the injury issue, however, the Court relied on language from a D.C. Circuit case that was quoted with the approval of the Supreme Court in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). At 518 F.2d 236, 240, the court stated: [t]he key word in this consideration is irreparable. Mere injuries, however substantial in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958). The Fifth Circuit concluded by stating that Plaintiff would be entitled to full back pay should her discharge be held wrongful. The Fifth Circuit employed the same rationale in Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975). In that case, Plaintiff sought to enjoin the Department of Labor from failing to hire him because he was a Caucasian. Citing Sampson v. Murray, supra, the Circuit Court reversed the trial court’s refusal to dissolve a temporary injunction because there was no showing of irreparable injury. The court noted that, were Plaintiff to prevail on the merits, the trial judge would have the power to award him the job he sought, as well as monetary damages based on the pay differential between" }, { "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": "7145376", "title": "", "text": "S.Ct. 937, 953 & n. 68, 39 L.Ed.29 166 (1974); EEOC v. City of Janesville, 630 F.2d 1254, 1259 (7th Cir.1980). However, the claim in this case is not simply that an employee has been discharged and thereby has suffered injuries normally compensable by money. In addition, the plaintiff asserts that the discharge was in retaliation for her prior claim of a Title VII violation by her employer. A retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights under the Act or from providing testimony for the plaintiff in her effort to protect her own rights. These risks may be found to constitute irreparable injury. We do not, however, accept the EEOC’s suggestion that there is irreparable injury sufficient to warrant a preliminary injunction in every retaliation case — a view that has been rejected by the Sixth Circuit even when the EEOC was plaintiff and there was testimony that five employees would be “chilled” in testifying in plaintiff’s favor. EEOC v. Anchor Hocking Corp., 666 F.2d 1037 (6th Cir.1981). In sustaining jurisdiction in Sheehan v. Purolator Courier Corp., supra, 676 F.2d at 887, we explicitly stated that we did “not alter the traditional showing that a party must make in order to persuade the court that injunctive relief is appropriate.” This hardly contemplated a presumption of irreparable injury in every action by a plaintiff alleging a retaliatory discharge. We do not doubt that the risk of weakened enforcement of Title VII, both in the instant case and in general, is a factor properly to be weighed by a district court in assessing irreparable injury. Judge Zampano may have implicitly concluded that this factor did not suffice to show irreparable injury in this case, but due regard for the enforcement of Title VII prompts us to return the matter to the District Judge so that he may explicitly determine whether the risk of irreparable damage arising from the consequences of what may have been a retaliatory discharge suffices, in the circumstances of this case, to satisfy the irreparable damage requirement for" }, { "docid": "23110670", "title": "", "text": "dispense with the irreparable harm requirement in affording injunctive relief; that temporary loss of income does not rise to the level of irreparable harm in the usual employee discharge case, see, e.g., Levesque v. Maine, 587 F.2d 78, 81 (1st Cir.1978) (citing Sampson and holding that plaintiffs “possible loss of earnings” did not amount to irreparable harm); and that, before enjoining a government agency from dismissing a Civil Service employee who has not exhausted her administrative remedies, a district court must find that the facts underlying the employee’s allegations of irreparable harm are “genuinely extraordinary.” E.g., Soldevila v. Secretary of Agriculture, 512 F.2d 427, 429-30 (1st Cir.1975). Sampson also stands for the general principle that irreparable harm is subject to a sliding scale analysis, such that the showing of irreparable harm required of a plaintiff increases in the presence of factors, including the failure to exhaust administrative remedies, which cut against a court’s traditional authority to issue equitable relief. See Chilcott v. Orr, 747 F.2d 29, 31-32 (1st Cir.1984) (“In view of the strong judicial policy against interfering with the internal affairs of the armed forces, we will apply the more stringent test of Sampson to applications for preliminary injunctions by military personnel.”); Bailey v. Delta Air Lines, Inc., 722 F.2d 942, 944 (1st Cir.1983) (“Here, as in Sampson, we think that the procedural requirements of Title VII should be considered in the equitable balancing process [and that] an aggrieved person seeking preliminary relief outside the statutory scheme for alleged Title VII violations would have to make a showing of irreparable injury sufficient in kind and degree to justify the disruption of the prescribed administrative process....”). In interpreting Sampson, however, numerous other courts have assumed that the “genuinely extraordinary” test for irreparable harm applies in all employee discharge cases, whatever the asserted basis for relief. See, e.g., Stewart v. United States Immigration & Naturalization Serv., 762 F.2d 193, 199-200 (2d Cir.1985); E.E.O.C. v. Anchor Hocking Corp., 666 F.2d 1037, 1040-44 (6th Cir.1981). But see E.E.O.C. v. Cosmair, Inc., 821 F.2d 1085, 1090 (5th Cir.1987) (holding that irreparable harm is presumed" }, { "docid": "6981012", "title": "", "text": "in order. See Bailey v. Delta Air Lines, Inc., 722 F.2d 942, 944 (1st Cir.1983). II We have consistently held that our review of the grant or denial of preliminary injunctions is limited to determining whether there has been an abuse of discretion, an error of law, or a clear mistake in the consideration of the proof. Rennie v. Klein, 653 F.2d 836, 840-41 (3d Cir.1981), vacated on other grounds, 458 U.S. 1119, 102 S.Ct. 3506, 73 L.Ed.2d 1381 (1982); Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir.1975). The moving party must, however, demonstrate that irreparable injury will occur unless relief maintaining the status quo is granted. Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351 (3d Cir.1980). We are convinced that no such injury was shown in this case. The district court stated that it did not accept “the rationale that any clear violation of one’s civil rights constitutes irreparable harm.” The court correctly declined to follow the position of the Court of Appeals for the Fifth Circuit in Middleton-Keirn v. Stone, 655 F.2d 609 (5th Cir.1981), that irreparable harm will be presumed when private sector employees seek a preliminary injunction in Title VII employment discrimination cases. That rule was developed in cases that antedated adoption of the 1972 amendments to the Act. See, e.g., Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir.1970); United States v. Hayes International Corp., 415 F.2d 1038 (5th Cir.1969). We adopt the position set out in EEOC v. Anchor Hocking Corp., 666 F.2d 1037 (6th Cir.1981). There, the Court of Appeals for the Sixth Circuit upheld the necessity for a showing of irreparable injury as a prerequisite for preliminary injunctive relief under Title VII. Section 706(f)(2) of the Act authorizes the EEOC to seek a preliminary injunction pursuant to Fed.R.Civ.P. 65 whenever the Commission concludes that prompt judicial action is necessary to carry out the purposes of the Act. After a comprehensive review of the legislative history, the court observed the Senate had taken the position that no showing of irreparable injury would be required, citing United States v. Hayes" }, { "docid": "6666518", "title": "", "text": "Co. v. Baldwin Piano and Organ Co., 604 F.2d 755, 758 (2d Cir. 1979). This court, after having carefully reviewed the record, concludes that plaintiff has met both prongs of the test and is therefore entitled to preliminary injunctive relief. 1. Irreparable Harm Generally, if an injury complained of may be compensated by an award of monetary damages, an adequate remedy at law exists and no irreparable injury may be found as a matter of law. Jackson Dairy Inc. v. H. P. Hood & Sons, Inc., supra, 596 F.2d at 72. The Second Circuit has recognized, however, that even in situations where damages are available, irreparable harm may be found if damages are “clearly difficult to assess and measure.” Danielson v. Local 275, Laborers International Union of North America, 479 F.2d 1033, 1037 (2d Cir. 1973). See also Niagara Mohawk Power Corp. v. Graver Tank & Manufacturing Co., 470 F.Supp. 1308, 1327-28 (N.D.N.Y.1979); Miller Brewing Co. v. Carling O’Keefe Breweries of Canada, Ltd., 452 F.Supp. 429, 438 (W.D.N.Y.1978). Based on the evidence presented to date, the court is convinced that this case presents a situation where the damages plaintiff will suffer would not be capable of reliable monetary calculation. In essence, plaintiff seeks to recover damages for the violation of his Title VII rights, the stigma resulting from that violation, and the humiliation he and his family will suffer from the allegedly discriminatory transfer. The court is of the opinion that given the unique nature of Title VII rights, the precise amount of these damages would be impossible to ascertain should plaintiff ultimately prevail on his claim. Accordingly, the court agrees with plaintiff’s contention that where the statutory civil rights of employees are found to have been violated, irreparable injury may be presumed from the loss of human dignity which such violations engender. See Manhart v. City of Los Angeles Department of Water and Power, 387 F.Supp. 980 (D.C.Cal.1975), aff’d in rel. part, 577 F.2d 98 (9th Cir. 1978). See also United States v. Central Carolina Bank and Trust Co., 431 F.2d 972, 975 (4th Cir. 1970); United States v." }, { "docid": "22178699", "title": "", "text": "success on the merits; 2) Whether the plaintiff has shown irreparable injury; 3) Whether the issuance of a preliminary injunction would cause substantial harm to others; 4) Whether the public interest would be served by issuing a preliminary injunction. Id. Although these four factors guide the discretion of the district court, they do not establish a rigid and comprehensive test for determining the appropriateness of preliminary injunctive relief. “A fixed legal standard is not the essence of equity jurisprudence .... ” Roth v. Bank of the Commonwealth, 583 F.2d 527, 537 (6th Cir. 1978). Nevertheless, this court has never held that a preliminary injunction may be granted without any showing that the plaintiff would suffer irreparable injury without such relief. Despite the overall flexibility of the test for preliminary injunctive relief, and the discretion vested in the district court, equity has traditionally required such irreparable harm before an interlocutory injunction may be issued. See Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61, 64-65, 95 S.Ct. 2069, 2077, 2078-2079, 45 L.Ed.2d 12 (1975); Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974); Beacon Theatres v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954, 3 L.Ed.2d 988 (1959); E.E.O.C. v. Hocking Corp., 666 F.2d 1037, 1039 (6th Cir. Dec. 16, 1981); United States v. Spectro Foods Corp., 544 F.2d 1175, 1181 (3rd Cir. 1976); 11 Wright & Miller, Federal Practice and Procedure § 2948, pp. 430-441 (1973); see generally Leubsdorf, The Standard For Preliminary Injunctions, 91 Harv.L.Rev. 525, 527-37 (1978). In Sampson v. Murray, supra, the Supreme Court reversed the granting of a preliminary injunction, in part because the plaintiff had not made any showing of irreparable harm. The Court stated: We believe that the Court of Appeals was quite wrong in suggesting that at this stage of the proceeding the District Court need not have concluded that there was actually irreparable injury. This Court has stated that “[t]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies” .... Yet the record before us indicates" }, { "docid": "399542", "title": "", "text": "prior to instituting suit, his formal complaint was not filed until after the suit was brought. In a case involving federal employee allegations of employment discrimination we have required exhaustion of administrative remedies in a § 1981 action. Penn v. Schlesinger, 497 F.2d 970 (5th Cir. 1975) (en banc); and the Supreme Court has required exhaustion in cases in which civil service remedies are sought, absent a strong showing of irreparable harm. Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). However, the instant federal employee suit is brought under Title VII. The intent of Congress in enacting the 1972 amendments to that Act extending its coverage to federal employment was to give those public employees the same rights as private employees enjoy. Therefore, our holding in Drew v. Liberty Mutual Ins. Co., 480 F.2d 69 (5th Cir. 1972) that exhaustion of administrative remedies is not required applies with equal force to federal employees seeking relief under Title VII. This means that the district court had jurisdiction to order the injunction. In the alternative, the Secretary contends that the trial court abused its discretion in ordering the injunction because there was no showing that Parks would be irreparably harmed if the Secretary were not enjoined. Rather, the Secretary asserts that, should Parks prevail on the merits, the district judge would have the power to award him the position he seeks, despite the fact that a permanent appointment to that position had been made in the interim. This would mean that his only damages, if he were to be held entitled to prevail on the merits, would be the monetary loss calculated on the pay differential of the job he sought and the one he holds. Parks does not dispute this, however, he argues that the injunction was necessary “to maintain the status quo”. This misconceives the central purpose of a preliminary injunction, which is to prevent irreparable harm. It is the threat of harm that cannot be undone which authorizes exercise of this equitable power to enjoin before the merits are fully determined. See Sampson v." }, { "docid": "22178700", "title": "", "text": "Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974); Beacon Theatres v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954, 3 L.Ed.2d 988 (1959); E.E.O.C. v. Hocking Corp., 666 F.2d 1037, 1039 (6th Cir. Dec. 16, 1981); United States v. Spectro Foods Corp., 544 F.2d 1175, 1181 (3rd Cir. 1976); 11 Wright & Miller, Federal Practice and Procedure § 2948, pp. 430-441 (1973); see generally Leubsdorf, The Standard For Preliminary Injunctions, 91 Harv.L.Rev. 525, 527-37 (1978). In Sampson v. Murray, supra, the Supreme Court reversed the granting of a preliminary injunction, in part because the plaintiff had not made any showing of irreparable harm. The Court stated: We believe that the Court of Appeals was quite wrong in suggesting that at this stage of the proceeding the District Court need not have concluded that there was actually irreparable injury. This Court has stated that “[t]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies” .... Yet the record before us indicates that no witnesses were heard on the issue of irreparable injury, that respondent’s complaint was not verified, and that the affidavit she submitted to the District Court did not touch in any way upon considerations relevant to irreparable injury. 415 U.S. at 88, 94 S.Ct. at 951 (citations omitted). The requirement of irreparable harm to support the granting of a preliminary injunction applies to private antitrust actions in the same way it applies to equity actions in general. This is made clear, both implicitly and explicitly, by section 16 of the Clayton Act, 15 U.S.C. § 26 (1976), which provides: Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, ... when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon" }, { "docid": "345461", "title": "", "text": "vendetta improperly instigated by former Director Card. The plaintiff alleges that the main catalyst behind these charges is the F.B.I. rap sheet which not only is inaccurate but also was obtained illegally. The plaintiff maintains that unless the dismissal proceeding is enjoined, he will suffer irreparable injury to both his name and career. Discussion of Law 1. Standards for a Preliminary Injunction The ability to grant preliminary injunctive relief is an extraordinary power which the Court should exercise only with great restraint and caution. Heldman v. United States Lawn Tennis Assoc., 354 F.Supp. 1241, 1252 (S.D.N.Y.1973). Restraint in such matters is especially appropriate in a case concerning dismissal from federal employment since courts traditionally allow the government wide latitude in the “dispatch of its own internal affairs.” Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1971); Sampson v. Murray, 415 U.S. 61, 83, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). A preliminary injunction may issue only upon a “. . . showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973). Subsequent cases have made it clear that implicit in the second prong of the Sonesta standard, requiring a balancing of hardships, is the necessity of demonstrating irreparable injury. Triebwasser and Katz v. American Tel. and Tel. Co., 535 F.2d 1356, 1359 (2d Cir. 1976); United States v. Culbro Corp., 436 F.Supp. 746, 749 (S.D.N.Y.1977). 2. Irreparable Injury The plaintiff claims that a preliminary injunction is required to protect both his reputation and career from irreparable injury. However it was precisely this type of damage which the Supreme Court held did not constitute irreparable injury in Sampson v. Murray, supra. The latter case concerned a claim by a probationary federal employee that her planned administrative discharge was not in accordance with proper civil service procedure." }, { "docid": "6666519", "title": "", "text": "the court is convinced that this case presents a situation where the damages plaintiff will suffer would not be capable of reliable monetary calculation. In essence, plaintiff seeks to recover damages for the violation of his Title VII rights, the stigma resulting from that violation, and the humiliation he and his family will suffer from the allegedly discriminatory transfer. The court is of the opinion that given the unique nature of Title VII rights, the precise amount of these damages would be impossible to ascertain should plaintiff ultimately prevail on his claim. Accordingly, the court agrees with plaintiff’s contention that where the statutory civil rights of employees are found to have been violated, irreparable injury may be presumed from the loss of human dignity which such violations engender. See Manhart v. City of Los Angeles Department of Water and Power, 387 F.Supp. 980 (D.C.Cal.1975), aff’d in rel. part, 577 F.2d 98 (9th Cir. 1978). See also United States v. Central Carolina Bank and Trust Co., 431 F.2d 972, 975 (4th Cir. 1970); United States v. Virginia Electric and Power Co., 327 F.Supp. 1034 (E.D.Va.1971). This is because a future award of back pay will not adequately compensate a Title VII plaintiff for the violation of his statutory rights. In reaching this conclusion, the court is mindful of the fact that the Fifth and Sixth Circuits have recently held to the contrary. See Porter v. Adams, 639 F.2d 273 (5th Cir. 1981); EEOC et al. v. Anchor Hocking Corp., 666 F.2d 1037 (6th Cir. 1981). The Second Circuit has not, as of yet, answered this precise question, to wit, how great a showing of irreparable injury is required when a party asserts a violation of his rights under the Civil Rights Act. The court believes that the Fifth and Sixth Circuit opinions, applying the Supreme Court decision in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), to a Title VII case, are neither persuasive nor binding on this court. In Sampson, the plaintiff, a probationary federal employee, was dismissed from her position without the full procedural" }, { "docid": "22597076", "title": "", "text": "to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). We hold that Stewart has failed to demonstrate sufficient injury to justify a finding of irreparable harm, an absolute requirement for an award of injunctive relief. Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1359 (2d Cir.1976). “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough” to justify injunctive relief. Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir.1975), cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977) (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958)). Moreover, in Sampson v. Murray, 415 U.S. 61, 91-92, 94 S.Ct. 937, 953-54, 39 L.Ed.2d 166 (1974), the Supreme Court articulated a particularly stringent standard for irreparable injury in government personnel cases. The Sampson Court held that, except in a \"genuinely extraordinary situation,” irreparable harm is not shown in employee discharge cases simply by a showing of financial distress or difficulties in obtaining other employment “however severely they may affect a particular individual.” Id. at 92 n. 68, 94 S.Ct. at 953 n. 68; see also Levesque v. Maine, 587 F.2d 78 (1st Cir.1978). Noting that Sampson involved lack of procedural due process and discharge in violation of Civil Service Regulations, as opposed to an action under title VII, the district court herein held that the strict standards of Sampson did not apply to the instant case and that irreparable injury was established herein by the alleged damage to Stewart’s family relationships, his inability to support his family, and the possibility that others might be chilled in exercising their rights as a result of alleged retaliatory action. Although the Holt court follows Sampson and suggests, in dictum, that there may be exceptions to the Sampson v. Murray rule under extraordinary circumstances, the Holt court clearly maintains that, even in the title VII context," }, { "docid": "23110671", "title": "", "text": "policy against interfering with the internal affairs of the armed forces, we will apply the more stringent test of Sampson to applications for preliminary injunctions by military personnel.”); Bailey v. Delta Air Lines, Inc., 722 F.2d 942, 944 (1st Cir.1983) (“Here, as in Sampson, we think that the procedural requirements of Title VII should be considered in the equitable balancing process [and that] an aggrieved person seeking preliminary relief outside the statutory scheme for alleged Title VII violations would have to make a showing of irreparable injury sufficient in kind and degree to justify the disruption of the prescribed administrative process....”). In interpreting Sampson, however, numerous other courts have assumed that the “genuinely extraordinary” test for irreparable harm applies in all employee discharge cases, whatever the asserted basis for relief. See, e.g., Stewart v. United States Immigration & Naturalization Serv., 762 F.2d 193, 199-200 (2d Cir.1985); E.E.O.C. v. Anchor Hocking Corp., 666 F.2d 1037, 1040-44 (6th Cir.1981). But see E.E.O.C. v. Cosmair, Inc., 821 F.2d 1085, 1090 (5th Cir.1987) (holding that irreparable harm is presumed where discharged employee has exhausted her administrative remedies and proceeds under a civil rights statute). Such a conclusion is predicated, in our opinion, upon an overly broad, and faulty, interpretation of Sampson’s holding. As the Court itself made clear early in its opinion, the questions of whether the district court had authority to issue the injunction and whether the irreparable harm finding was proper were not analytically distinct. Sampson, 415 U.S. at 68, 94 S.Ct. at 942. The Court reiterated throughout the opinion that the district court should not have weighed the irreparable harm allegations without taking into account the multiple factors rendering tenuous its authority to reinstate a discharged Civil Service employee pending the exhaustion of the administrative appeal process. See supra p. 1231. Before leaving the question of the district court’s authority, the Court explained that the plaintiff “must make a showing of irreparable injury sufficient in kind and degree to override these factors...” Id. at 84, 94 S.Ct. at 950 (emphasis added). As such, the Court’s conclusion that an extraordinary showing of" }, { "docid": "6666520", "title": "", "text": "Virginia Electric and Power Co., 327 F.Supp. 1034 (E.D.Va.1971). This is because a future award of back pay will not adequately compensate a Title VII plaintiff for the violation of his statutory rights. In reaching this conclusion, the court is mindful of the fact that the Fifth and Sixth Circuits have recently held to the contrary. See Porter v. Adams, 639 F.2d 273 (5th Cir. 1981); EEOC et al. v. Anchor Hocking Corp., 666 F.2d 1037 (6th Cir. 1981). The Second Circuit has not, as of yet, answered this precise question, to wit, how great a showing of irreparable injury is required when a party asserts a violation of his rights under the Civil Rights Act. The court believes that the Fifth and Sixth Circuit opinions, applying the Supreme Court decision in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), to a Title VII case, are neither persuasive nor binding on this court. In Sampson, the plaintiff, a probationary federal employee, was dismissed from her position without the full procedural right of review statutorily accorded to her. The plaintiff asserted that her temporary loss of income and the ensuing humiliation constituted sufficient irreparable harm to support the issuance of a preliminary injunction. The Supreme Court disagreed, stating: Respondent’s claim here is not that she could not as a matter of statutory or administrative right be discharged, but only that she was entitled to additional procedural safeguards in effecting the discharge.... * * * * * * [W]e think the showing falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case. 415 U.S. at 91-92, 94 S.Ct. at 953-54. In a footnote to the same passage, however, the Court went on to state: We recognize that cases may arise in which the circumstances surrounding an employee’s discharge, together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury may be found. Id. at 92, 94 S.Ct. at 954. This court concludes that" }, { "docid": "1673435", "title": "", "text": "immediate co-workers was offended or angered by her actions, and several were openly supportive. Where those who would bear the major burden of any accommodation apparently favor that accommodation, this Court is especially reluctant to accept defendant’s assertion of undue hardship. In sum, based on the government’s failure even to attempt an accommodation of Petitioner’s beliefs and on the likelihood that the Postal Service could reasonably arrange some accommodation without undue hardship, the Court concludes that Petitioner has demonstrated at least a high probability of ultimate success on the merits of her Title VII claim. B. Threat of Irreparable Injury The Court also concludes that Petitioner has made a sufficient showing of a threat of irreparable injury to entitle her to injunctive relief. See Berg, supra, 528 F.2d at 1211-12. On account of her adherence to her strong religious convictions, Petitioner would here be losing a job she has held for ten years and continues to perform satisfactorily. Of course, where a discharged employee can be compensated with reinstatement and back pay, there is generally 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," }, { "docid": "23113525", "title": "", "text": "exception recognized by Hayes and Cosmair. In Porter v. Adams, 639 F.2d 273, 278 (6th Cir. Unit A Mar. 1981), we held explicitly that “the traditional considerations that inform decisions concerning preliminary injunctive relief—irreparable harm, the likelihood of success on the merits, balancing of the equities, and the public interest—still apply” in Title VII cases involving federal employees. The authorities that govern this inquiry are Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), and its progeny. Porter, 639 F.2d at 278 n. 8. Remarkably, in plaintiffs brief his counsel does not even address Porter, even though that same counsel represented the Porter plaintiff in that case. However, there is simply no reasonable way to avoid Porter and conclude that irreparable harm need not be established in a Title VII case not coming squarely under Hayes and Cos-mair. “[Ijrreparable injury is an essential prerequisite to preliminary injunctive relief for federal employees under Title VII.” Porter, id. (citing Garza v. Texas Educ. Found., Inc., 565 F.2d 909 (5th Cir.1978); Morgan v. Fletcher, 518 F.2d 236 (5th Cir.1975); Parks v. Dunlop, 517 F.2d 785 (5th Cir.1975)). In Sampson, the Supreme Court overturned a finding that irreparable harm was established where a federal employee was discharged and sought reinstatement pending her appeal to the Civil Service Commission. The Court instructs that “[mjere injuries, however substantial, in terms of money, time, and energy necessarily expended in the absence of a stay, are not enough.” 415 U.S. at 90, 94 S.Ct. at 953. Sampson also explicitly mandates that courts must consider the disruptive effect on the administrative process of the federal government of granting preliminary injunctions in government-employment-related cases. Without even considering the merits of her underlying claims, the court held that the hapless plaintiff in Sampson could not establish irreparable harm despite the fact that she had lost her livelihood. Id. at 92-93, 94 S.Ct. at 954. By contrast, the instant plaintiff, White, has merely been reassigned to a new position at the same location and salary. It is difficult to see what irreparable harm White is likely to suffer" }, { "docid": "23635227", "title": "", "text": "L.Ed.2d 416 (1976) (“The legislative history of the 1972 amendments reinforces the plain meaning of the statute and confirms that Congress intended to accord federal employees the same right to a trial de novo as is enjoyed by private-sector employees and employees of state governments and political subdivisions under the amended Civil Rights Act of 1964.”); Ayon v. Sampson, 547 F.2d 446, 449 (9th Cir.1976) (“Congress, in enacting 42 U.S.C. § 2000e-16 and thereby extending the equal employment opportunity provisions of the Civil Rights Act to federal employees, intended to include the protections from harassment and retaliation embodied in the Civil Rights Act.”). Not surprisingly, the decision in Sampson created some uncertainty as to the application of its principles to Title VII litigation. See B. Schlei & P. Grossman, supra at 1063. The Fifth Circuit had earlier indicated that a showing of irreparable harm was not a prerequisite to preliminary injunctive relief under Title VII and could be presumed. United States v. Hayes International Corp., 415 F.2d 1038, 1045 (5th Cir.1969). It has now concluded, however, that Sampson changed the rule “at least insofar as federal employees are concerned.” Porter v. Adams, 639 F.2d 273, 278 n. 8 (5th Cir.1981). The Second Circuit has also indicated that the Sampson standards apply in Title VII cases. Stewart v. INS, 762 F.2d 193, 199 (2d Cir.1985). In our decision in EEOC v. Pacific Press Publishing Association, 535 F.2d 1182 (9th Cir.1976), we stated that the EEOC is not required to show irreparable harm in order to obtain an injunction against a private employer. Id. at 1187. We commented, however, that under Sampson a private litigant does have some burden of showing irreparable harm. Id. We quoted Sampson with approval for the proposition that “ 'temporary loss of income, ultimately to be recovered does not usually constitute irreparable injury.’ ” Id. at 1187, quoting Sampson v. Murray, 415 U.S. at 90, 94 S.Ct. at 952. One principle which seems to emerge with some degree of clarity from this history is that if the standards of Sampson apply in a Title VII case against" }, { "docid": "6308855", "title": "", "text": "“traditional standards governing more orthodox ‘stays.’ ” Sampson v. Murray, 415 U.S. 61, 83-84, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (“Sampson ”). The Supreme Court thus held in Sampson that a plaintiff, seeking to stay her termination pending an administrative appeal under a Civil Service Commission regulation, was required to make “a showing of irreparable injury sufficient in kind and degree to override these factors cutting against the general availability of preliminary injunctions in Government personnel cases.” Sampson, 415 U.S. at 83-84, 94 S.Ct. 937. Only in genuinely “extraordinary cases” may irreparable injury be found. Id. at 92, 94 S.Ct. 937. Although the D.C. Circuit has not expressly held that the standard set forth in Sampson applies in Title VII litigation, Wagner, 836 F.2d at 575 n. 66, at least one member of our Court has held that, in light of the Supreme Court’s ruling in Sampson, a plaintiff seeking injunctive relief in a Title VII discrimination action against the federal government must make “a more stringent showing of irreparable injury” and demonstrate that “civil rights claims take precedence over the government’s interest in making personnel decisions.” Bonds v. Heyman, 950 F.Supp. 1202, 1212 (D.D.C.1997) (“Bonds”), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). This Court agrees. 1. Plaintiffs Likelihood of Success on Merits of Her Retaliation Claim In evaluating the appropriateness of preliminary injunctive relief, the Court must first consider whether Jordan has demonstrated a likelihood of success on the merits of her retaliation claim. Wagner, 836 F.2d at 575. Claims of retaliation under Title VII are governed by the three-step analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (“McDonnell Douglas”). Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case for discrimination. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The defendant must then respond by producing legitimate, non-diseriminatory explanations for the alleged discriminatory" }, { "docid": "7145375", "title": "", "text": "was left unresolved or that the plaintiff had not met her burden of proof. He ultimately concluded, “What is clear, however, is that the plaintiff has failed to make the requisite showing of irreparable harm,” id. at 18 (emphasis added). Since we conclude that this core ruling on irreparable injury warrants further consideration by the District Court, we prefer not to assess the probability of success on the merits at this stage and instead permit the District Judge to clarify his ruling on this point, in the event that, upon remand, he should conclude that irreparable injury warranting a preliminary injunction has been shown. With respect to irreparable injury, an absolute requirement for a preliminary injunction, Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1359 (2d Cir.1976), we agree with Judge Zampano that the requisite irreparable harm is not established in employee discharge cases by financial distress or inabili ty to find other employment, unless truly extraordinary circumstances are shown. Sampson v. Murray, 415 U.S. 61, 91-92 & n. 68, 94 S.Ct. 937, 953 & n. 68, 39 L.Ed.29 166 (1974); EEOC v. City of Janesville, 630 F.2d 1254, 1259 (7th Cir.1980). However, the claim in this case is not simply that an employee has been discharged and thereby has suffered injuries normally compensable by money. In addition, the plaintiff asserts that the discharge was in retaliation for her prior claim of a Title VII violation by her employer. A retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights under the Act or from providing testimony for the plaintiff in her effort to protect her own rights. These risks may be found to constitute irreparable injury. We do not, however, accept the EEOC’s suggestion that there is irreparable injury sufficient to warrant a preliminary injunction in every retaliation case — a view that has been rejected by the Sixth Circuit even when the EEOC was plaintiff and there was testimony that five employees would be “chilled” in testifying in plaintiff’s favor. EEOC v. Anchor Hocking Corp., 666" } ]

[ { "docid": "22657335", "title": "", "text": "grand jury indictment, which charged the petitioner with “having been ‘found in the United States . . . after being deported,’” in violation of 8 U.S.G. § 1326(a) — an offense carrying a maximum sentence of two years. 523 U. S., at 227. Almendarez-Torres pleaded guilty to the indictment, admitting at the plea hearing that he had been deported, that he had unlawfully reentered this country, and that “the earlier deportation had taken place ‘pursuant to’ three earlier ‘convictions’ for aggravated felonies.” Ibid. The Government then filed a presentenee report indicating that Almendarez-Torres’ offense fell within the bounds of § 1326(b) because, as specified in that provision, his original deportation had been subsequent to an aggravated felony conviction; accordingly, Almendarez-Torres could be subject to a sentence of up to 20 years. Almendarez-Torres objected, contending that because the indictment “had not mentioned his- earlier aggravated felony convictions,” he could be sentenced to no more than two years in prison. Ibid. Rejecting Almendarez-Torres’ objection, we concluded that sentencing him to a term higher than that attached to the offense alleged in the indictment did not violate the strictures of Winship in that case. Because Almendarez-Torres had admitted the three earlier convictions for aggravated felonies — all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own— no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court. Although our conclusion in that ease was based in part on our application of the criteria we had invoked in McMillan, the specific question decided concerned the sufficiency of the indictment. More important, as Jones made crystal clear, 526 U. S., at 248-249, our conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was “the prior commission of a serious crime.” 523 U. S., at 230; see also id., at 243 (explaining that “recidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence”); id., at 244" } ]

[ { "docid": "5831822", "title": "", "text": "officer, applied the 16-level enhancement and imposed the sentence Maria-Gonzalez challenges in this appeal. II. We review de novo whether the aggravated felony provisions of the Sentencing Guidelines apply to a conviction. United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir.2000). We also review de novo the district court’s interpretation of the Sentencing Guidelines, United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir.1996), and its interpretation of the constitutional rule expressed in Apprendi United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001). III. Aliens who return to the United States after deportation without the permission of the Attorney General are subject to two years’ imprisonment. 8 U.S.C. § 1326(a). This statutory base sentence is increased to a maximum of twenty years for aliens .whose prior deportation was “subsequent to a conviction for commission of an aggravated felony.” Id. § 1326(b)(2). The Sentencing Guidelines provide that if a “defendant previously was deported after a criminal conviction ... [and] if the conviction was for an aggravated felony, increase by 16 levels.” U.S.S.G. § 2L1.2(b)(l)(A). The issue here is one of timing. Maria-Gonzalez contends that his prior conviction must have been classified as an aggravated felony at the time of his deportation, while the government argues that the classification is appropriately made at the time of his reentry violation — in this case, at the time Maria-Gonzalez was “found in” the United States. In support of its argument, the government relies upon United States v. Ramirez-Valencia, 202 F.3d 1106 (9th Cir.1999). There, the defendant was' convicted in 1986 of a crime that was not, at that time, classified as an aggravated felony. The defendant was deported in 1988 and re-entered illegally in 1994. In 1996, the defendant’s 1986 crime was classified by IIRIRA as an aggravated felony. In 1998, he pleaded guilty to being a previously deported alien found in the United States in violation of 8 U.S.C. § 1326(a). The district court determined that his prior conviction was an aggravated felony and applied the 16-level enhancement. We affirmed. Ramirez-Valencia, 202 F.3d at 1110. The government contends Ramirez-Valencia controls the" }, { "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": "22387472", "title": "", "text": "however, found “that Mr. Arellano’s offer of proof is insufficient to support the proffered defense,” and precluded him from presenting a necessity defense to the jury. The jury convicted Arellano-Rivera of violating § 1326. After he was found guilty, Arellano-Rivera moved for acquittal and, in the alternative, for a new trial. Along with these motions, Arellano-Rivera submitted in excess of 100 pages of materials detailing the seriousness of his medical condition. The district court denied both motions. C. Sentencing Before the sentencing hearing, the Probation Department recommended, among other things, that Arellano-Rivera’s base offense level be increased sixteen levels because he had been deported previously following a conviction for an aggravated felony. See United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(l)(A). Arellano-Rivera objected to the sixteen-level increase because the government had not charged in the indictment nor proved at trial that he had been previously convicted of an aggravated felony. The district court rejected his argument. The court determined that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that prior convictions need not be proven beyond a reasonable doubt, was an exception to the constitutional rule expressed in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), that “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.” Accordingly, the court sentenced Arellano-Rivera to sixty months in prison. Ill Discussion A. Speedy Trial Act Arellano-Rivera argued below and contends again on appeal that the government violated the Speedy Trial Act because (1) it did not obtain an indictment on the § 1326 charge within thirty days of his arrest, and (2) his trial did not commence within seventy days of the filing of the information. The district court rejected both contentions. “We review a district court’s application of the Speedy Trial Act de novo.\" United States v. Ramirez-Cortez, 213 F.3d 1149, 1153 (9th Cir.2000). 1. Delay in Obtaining the Indictment The Speedy Trial Act requires the filing of an indictment or" }, { "docid": "22763827", "title": "", "text": "F.3d 1053, 1059-60 (9th Cir.2000). Our recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2001), however, forecloses Castillo’s Apprendi claim: [Almendarez-Torres v. United States], 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) is dispositive here. The district court was entitled to consider any prior aggravated felony convictions in sentencing Pacheco-Zepeda for illegal reentry even though such conduct had not been charged in the indictment, presented to a jury, and proved beyond a reasonable doubt. Id. at 413. Upholding a sentence enhancement under analogous circumstances, we specifically rejected in Pacheco-Zepeda the same argument Castillo makes that Almendarez-Torres is no longer viable precedent and that it should be limited strictly to its unique facts (ie., defendant admitted his prior aggravated felony convictions on the record). Id. at 415. Moreover, Pacheco-Zepeda leaves no doubt that the recidivism exception to Apprendi’s holding is not, contrary to Castillo’s suggestion, somehow inapplicable to an aggravated felony enhancement under 8 U.S.C. § 1326 because removal must have been subsequent to an aggravated felony conviction. The Supreme Court “unmistakably carved out an exception for ‘prior convictions’ that specifically preserved the holding of Almendarez-Torres.” Id. at 415. III. Conclusion We conclude that Castillo’s prior state conviction for being a felon in possession of a firearm under CPC § 12021(a) constitutes an aggravated felony “as an offense described in” 18 U.S.C. § 922(g)(1), pursuant to U.S.S.G. § 2L1.2(b)(l)(A) and 8 U.S.C. § 1101(a)(43)(E)(ii). We also deny his Apprendi challenge to the sentence enhancement imposed. Accordingly, the sentence is AFFIRMED. . Section 12021(a)(1) provides: Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, who owns or has in his her possession or under his or her custody or control any firearm is guilty of a felony. Cal. Pen.Code § 12021(a)(1). . Section 922(g)(1) provides: It shall be unlawful for any person— (1)" }, { "docid": "23233309", "title": "", "text": "defendant’s criminal history category, ... U.S.C. § 1101(a)(48)(B), not U.S.S.G. § 4A1.2(b) applies for the purposes of defining ‘term of imprisonment’ in U.S.S.G. § 2L1.2.” Tejeda-Perez, 199 F.3d at 982; see also United States v. McKenzie, 193 F.3d 740, 742 (3d Cir.1999) (same); United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir.1999) (same). Therefore, we conclude that imposition of a one year sentence, even if later suspended, satisfies the requirements under 8 U.S.C. § 1326(b)(2). III. APPRENDI Echavarria also challenges his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), arguing that the fact of his prior conviction is an element of the offense of illegal reentry under 8 U.S.C. § 1326 that must be charged in the indictment. Thus, Echavarria claims that the district court committed reversible error by enhancing his sentence 16 levels under U.S.S.G. § 2L1.2(b)(l)(A). Echavarria’s argument is foreclosed by our decision in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000) (“Apprendi ... preserved the specific holding of Almendarez Torres” because Apprendi specifically excluded “fact[s] of prior conviction” from its holding), cert. denied, — U.S.—, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001); see also United States v. Fresnares-Torres, 235 F.3d 481 (9th Cir.2000) (“[T]he subsection increasing the penalty for previous deportation following conviction for an aggravated felony-was a mere penalty provision for recidivist behavior and did not define a separate of- fense.”), cert, denied, — U.S. —, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001). Echavarria also attempts to limit Pacheco-Zepeda’s holding to only those defendants who fail to challenge the accuracy of the prior conviction. This argument runs contrary to the plain language of Pacheco-Zepeda. There we stated that “Apprendi held that all prior convictions — not just those admitted on the record — were exempt from Apprendi’s general rule and, under Almendarez-Torres, may continue to be treated as sentencing factors.” Pacheco-Zepeda, 234 F.3d at 415 (emphasis in original); see also United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir. 2001) (“ ‘Although Apprendi does refer to the fact that the defendant in Almenda-rez-Torres did" }, { "docid": "5831830", "title": "", "text": "the existence of his pri- or conviction beyond a reasonable doubt. It does not. In Almendarez-Torres, the Supreme Court held that 8 U.S.C. § 1326(b)(2) “simply authorizes a court to increase the sentence for a recidivist ... [and] does not define a separate crime.” Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Thus, a prior conviction is merely a sentencing factor and not an element of the offense. Id. In Apprendi, the Supreme Court held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. The Court did not overrule Almendarez-Torres. The Court stated, however, that “it was arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested.” Id. Maria-Gonzalez points to this language and argues that because he “contests the recidivist issue,” his prior conviction must be proved beyond a reasonable doubt. The Apprendi issue Maria-Gonzalez raises has been resolved by recent decisions of this court. The same argument he makes was made in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001). There, the defendant challenged the use of prior aggravated felonies to enhance his base offense level, relying on the same language of Apprendi that Maria-Gonzalez relies upon. We held that notwithstanding this language from Apprendi, the Court had not overruled Almendarez-Torres, and “ ‘[under] Almendarez-Torres, the government [is] not required to include [a defendant’s] pri- or aggravated felony convictions in the in dictment, submit them to a jury, or prove them beyond a reasonable doubt.’” Arellano-Rivera, 244 F.3d at 1127 (quoting United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000), as amended (Feb. 8.2001)). See also United States v. Castillo-Rivera, 244 F.3d 1020, 1024-25 (9th Cir.2001). Maria-Gonzalez’s Appren-di argument fails. V. The judgment of conviction entered by the district court included convictions for violations of both 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2). Section 1326(b)(2), however, does not" }, { "docid": "22767934", "title": "", "text": "in Almendarez-Torres v. United States, a judge may enhance a sentence under § 1326(b) for a prior conviction even if the fact of the conviction was not charged in the indictment, submitted to a jury, or proved beyond a reasonable doubt. See 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000). Covian argues that the Supreme Court has effectively overruled Almendarez-Tor-res, and, relatedly, that recent Supreme Court decisions create constitutional doubt that should compel us to limit the holding of Almendarez-Torres to cases in which the defendant admits the prior conviction during a guilty plea. Covian also argues that Apprendi renders unconstitutional the provisions of § 1326 that allow a judge to increase the maximum sentence from two years to twenty. All of these arguments, however, are squarely foreclosed by our precedents. See, e.g., United States v. Beng-Salazar, 452 F.3d 1088 (9th Cir.2006); United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir.2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005). We therefore must reject Covian’s contention that the district court could not enhance his sentence based on its own finding of the fact of a prior felony conviction. B. We turn to the district court’s finding that Covian was removed after his felony conviction. The plain language of § 1326 clearly does not allow a district court to apply the heightened maximum sentence to an alien whose removal was prior to a felony conviction, rather than “subsequent” to it. 8 U.S.C. § 1326(b)(2). In other words, to trigger the increase in the statutory maximum sentence under § 1326(b)(2), an alien must first be convicted of an aggravated felony, then be removed, and then attempt to reenter, in that order. See id.; United States v. Luna-Madellaga, 315 F.3d 1224, 1226 (9th Cir.2003) (“All that the statute requires is that the alien [attempt to] reenter the United States illegally after having been removed subsequent to an aggravated felony conviction.”). The removal that Covian admitted at trial was in 1997. Because his felony conviction was not until 2002, that" }, { "docid": "12970581", "title": "", "text": "THOMAS, Circuit Judge. Manuel Hernandez-Castellanos appeals the 46-month sentence he received after pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326. He contends that the district court erred in concluding that his prior Arizona conviction for felony endangerment constitutes an aggravated felony and in refusing to depart downward. We lack jurisdiction to review the district court’s discretionary decision not to depart downward, but we agree with Hernandez^ Castellanos that felony endangerment under Arizona law is not, categorically, an aggravated felony. Accordingly, we reverse in part, dismiss in part, and remand for resentencing. I Hernandez-Castellanos, a citizen of Mexico, was arrested in Arizona and charged with illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). He pled guilty. Over Hernandez-Castella-nos’s objection, the district court enhanced Hernandez-Castellanos’s sentence on the ground that he had been convicted of an aggravated felony prior to being deported. See 8 U.S.C. § 1326(b)(2) (increasing the maximum sentence for illegal reentry if the defendant was convicted of an “aggravated felony” prior to being deported); U.S.S.G. § 2L1.2(b)(l)(A) (2000) (providing for a 16-level increase in illegal reentry’s base offense level if the reentry occurred subsequent to an aggravated felony). The district court departed downward by two levels because Hernandez-Castellanos had agreed to reinstatement of removal and participated in fast-track sentencing procedures, but declined to depart downward on other grounds and as far down as Hernandez-Castellanos desired. Hernandez-Cas-tellanos timely appeals. We have jurisdiction under 28 U.S.C. § 1291. II The district court based the aggravated felony enhancement on Hernandez-Castel-lanos’s prior Arizona conviction for felony endangerment. Before he was deported, Hernandez-Castellanos had been arrested in Arizona while driving under the influence of alcohol in an automobile missing'its right front tire. His four minor children were passengers in the car. He apparently pled guilty to felony endangerment in violation of Arizona Revised Statutes § 13-1201 and misdemeanor driving under the influence. We review de novo whether this conviction is an aggravated felony. United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir.2001) (en bane). A prior conviction is an aggravated felony for purposes of enhancing an" }, { "docid": "22763826", "title": "", "text": "nexus standard applies to section 922(g) and that a past connection is enough. United States v. Hanna, 55 F.3d 1456, 1462 (9th Cir.1995) (quoting United States v. Sherbondy, 865 F.2d 996, 1000-01 (9th Cir.1988)). Consequently, we do not believe that this minimal jurisdictional nexus was meant substantially to narrow or to eliminate the range of state offenses that Congress intended to incorporate under § 1101(a)(43)(E)(ii) when it defined aggravated felony as “an offense as described” in 18 U.S.C. § 922(g). We thus hold that a state felon in possession offense is not required to include a commerce nexus as one of its elements in order to qualify as an aggravated felony for sentencing purposes. B. Apprendi Challenge Castillo raises for the first time on appeal the contention that his sentence violates his constitutional rights under Apprendi because his prior aggravated felony conviction was neither admitted nor proven to a jury beyond a reasonable doubt. A claim under Apprendi raised for the first time on appeal is reviewed for plain error. United States v. Nordby, 225 F.3d 1053, 1059-60 (9th Cir.2000). Our recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2001), however, forecloses Castillo’s Apprendi claim: [Almendarez-Torres v. United States], 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) is dispositive here. The district court was entitled to consider any prior aggravated felony convictions in sentencing Pacheco-Zepeda for illegal reentry even though such conduct had not been charged in the indictment, presented to a jury, and proved beyond a reasonable doubt. Id. at 413. Upholding a sentence enhancement under analogous circumstances, we specifically rejected in Pacheco-Zepeda the same argument Castillo makes that Almendarez-Torres is no longer viable precedent and that it should be limited strictly to its unique facts (ie., defendant admitted his prior aggravated felony convictions on the record). Id. at 415. Moreover, Pacheco-Zepeda leaves no doubt that the recidivism exception to Apprendi’s holding is not, contrary to Castillo’s suggestion, somehow inapplicable to an aggravated felony enhancement under 8 U.S.C. § 1326 because removal must have been subsequent to an aggravated felony conviction. The Supreme Court" }, { "docid": "22225770", "title": "", "text": "(1990); and (3) the district court erred in not reducing his offense level by an additional level for acceptance of responsibility based on his having timely notified authorities of his intent to plead guilty. II. STANDARD OF REVIEW Whether a prior conviction qualifies as an aggravated felony under the Guidelines is a question of law reviewed de novo. United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1246 (9th Cir.2003). A district court’s decision whether to reduce a defendant’s sentence for acceptance of responsibility is reviewed for clear error. United States v. Cortes, 299 F.3d 1030, 1037 (9th Cir.2002). “[Whether the district court misapprehended the law with respect to the acceptance of responsibility reduction” is reviewed de novo. Id. The district court’s denial of a motion to dismiss an indictment for failure to plead an essential element of an offense is reviewed de novo. See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001). III. ANALYSIS A. Pleading an Aggravated Felony in the Indictment Espinoza-Cano argues that the fact of his prior conviction for an aggravated felony must have been pled in the indictment and proven to a jury beyond a reasonable doubt. This argument is foreclosed by Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350, which remains binding precedent on this court. United States v. Weiland, 420 F.3d 1062, 1079, n. 16 (9th Cir.2005); United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004); United States v. Pacheco-Zepeda, 234 F.3d 411, 412 (9th Cir.2000). B. The Prior Felony Conviction Pursuant to section 2L1.2(b)(l)(C) of the Guidelines, the offense level for a defendant convicted of a violation of 8 U.S.C. § 1326 is increased by eight levels if the defendant was deported after being convicted of an aggravated felony. The question is whether Espinoza-Cano’s conviction for grand theft under § 487(a) of the California Penal Code qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), which classifies a theft offense for which the term of imprisonment is at least one year as an aggravated felony. There exist two approaches to determine whether a prior conviction is an aggravated" }, { "docid": "4247871", "title": "", "text": "government did not prove that felony was an aggravated felony, and the jury was not instructed on the added element of aggravation. In these circumstances, we concluded Moreno-Hernandez was convicted under section 1326(b)(1), reentry after deportation for committing a simple felony, and he could not be sentenced for a violation of that statute to a term of imprisonment in excess of that statute’s five-year maximum. On remand, the district court resentenced Moreno-Hernandez to 60 months imprisonment for the violation of 8 U.S.C. § 1326(b)(1) — count 4 — but, based on guidelines §§ 2L1.2(b)(2) and 5G1.2(d) (Nov. 1991), ordered his sentence on that count to be served consecutively to, rather than concurrently with, the 60-month concurrent sentences imposed on counts 1-3. The total restructured period of incarceration was 120 months — a term substantially similar to the 125-month sentence we vacated on the first appeal. STANDARD OF REVIEW We review de novo the legality of á criminal sentence, as well as a district court’s interpretation of the Sentencing Guidelines. United States v. Gnzman-Bruno, 27 F.3d 420, 422 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 451, 130 L.Ed.2d 360 (1994); United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.1994), DISCUSSION A. Sentence Enhancement under § 2L1.2(b)(2) Moreno-Hernandez contends the district court erred when it increased his offense level on count 4 pursuant to § 2L1.2(b)(2) of the guidelines, and . sentenced him on that count to the five-year maximum provided by 8 U.S.C. § 1326(b)(1). He argues this was impermissible because the court accomplished indirectly by use of the guidelines what we prohibited in our prior decision. We disagree. In our unpublished memorandum disposition in Moreno-Hernandez’s first appeal, we decided only that, pursuant to óur decisions in United States v. Gonzalez-Medina, 976 F.2d 570 (9th Cir.1992), and United States v. Campos-Martinez, 976 F.2d 589 (9th Cir. 1992), he had not been convicted on count 4 of violating section 1326(b)(2)' because the government had not proved at trial a necessary element of that offense — namely, that he reentered the United States after deportation for commission of an aggravated" }, { "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": "18057858", "title": "", "text": "a prior conviction. Martinez alternatively appeals the district court’s finding that it lacked the authority to grant Defendant’s motion for a downward departure. STANDARD OF REVIEW The constitutionality of a federal statute is an issue of law and, therefore, reviewed de novo. United States v. Turner, 926 F.2d 883, 887 (9th Cir.1991). Whether a particular factor is a permissible basis for a departure is also an issue of law and, therefore, reviewed de novo. United States v. Lipman, 133 F.3d 726, 729 (9th Cir.1998); see also United States v. Montano, 250 F.3d 709, 712 (9th Cir.2001) (stating that a district court’s interpretation of the guidelines is a legal issue subject to de novo review). DISCUSSION I. Constitutionality of 8 U.S.C. § 1326 Defendant argues that 8 U.S.C. § 1326 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the statutory maximum can be increased based upon enhancement facts that do not give rise to the Due Process protections applicable to offense elements. Section 1326 prohibits illegal reentry into the United States. Section 1326(a) enumerates the elements of illegal entry and imposes a two-year maximum sentence. Section 1326(b) provides enhanced sentences of up to twenty years for aliens who were deported previously following aggravated felony convictions. Almendarez-Torres v. United States, 523 U.S. 224, 238, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (finding that § 1326(b) sentencing is an enhancement of the offense outlined in § 1326(a)). Defendant’s argument is foreclosed by our decision in United States v. Pacheco-Zepeda, where we held that Apprendi had “unmistakably carved out an exception for ‘prior convictions.’ ” 234 F.3d 411, 414 (9th Cir.), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001); see also United States v. Fresnares-Torres, 235 F.3d 481, 482 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (same). II. Collateral Attack on Prior Conviction Defendant next argues that the district court erred when it concluded that it did not have discretion to award a downward departure based upon questions surrounding his 1995 conviction." }, { "docid": "18057859", "title": "", "text": "reentry into the United States. Section 1326(a) enumerates the elements of illegal entry and imposes a two-year maximum sentence. Section 1326(b) provides enhanced sentences of up to twenty years for aliens who were deported previously following aggravated felony convictions. Almendarez-Torres v. United States, 523 U.S. 224, 238, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (finding that § 1326(b) sentencing is an enhancement of the offense outlined in § 1326(a)). Defendant’s argument is foreclosed by our decision in United States v. Pacheco-Zepeda, where we held that Apprendi had “unmistakably carved out an exception for ‘prior convictions.’ ” 234 F.3d 411, 414 (9th Cir.), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001); see also United States v. Fresnares-Torres, 235 F.3d 481, 482 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (same). II. Collateral Attack on Prior Conviction Defendant next argues that the district court erred when it concluded that it did not have discretion to award a downward departure based upon questions surrounding his 1995 conviction. Defendant claims that he was a minor at the time of the prior offense and, therefore, the Oregon court did not have jurisdiction to convict him. Defendant claims that the Oregon court disregarded evidence that he was a minor at the time of the offense. Defendant argues that, because the Oregon conviction was erroneous, the district court had discretion to depart downward for an offense based upon that conviction. As an initial matter, we note that Defendant did not appeal the Oregon conviction or seek habeas relief. If ... a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse. The presumption of validity that attached to the prior conviction at the time of sentencing is conclusive, and the defendant may not collaterally attack his prior conviction through a motion under § 2255. Daniels v. United States, 532 U.S." }, { "docid": "21303700", "title": "", "text": "burden of proof to Lopez. See Bruce v. Terhune, 376 F.3d 950, 955-56 (9th Cir.2004) (per curiam) (noting that there is no error where “the instructions as a whole made clear to the jury that the prosecution bore the burden of proving each element of the crime beyond a reasonable doubt”) (citation omitted). C. Sentence For the first time on appeal, Lopez challenges his sentence. 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 challenge to the district court’s finding of the fact of his prior conviction 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, 547 U.S. 1114, 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”). Lopez also contends that" }, { "docid": "2256405", "title": "", "text": "felonies.” Ramirez-Garcia also argues that the enhancement of his sentence was illegal because a pre-deportation conviction is no longer an element of a section 1326 violation and, therefore, the offense characteristic listed in U.S.S.G. § 2L1.2(b) is beyond the limited authority given by Congress to the Sentencing Commission. The district court held that the existence of a prior felony conviction is a sentencing factor, not an element of the offense, and that it was an aggravated felony for the purposes of the guideline. We agree. Congress made abundantly clear when it amended the illegal reentry statute (8 U.S.C. § 1326(b)) that it wished to enhance the penalties for aliens with prior convictions in order to deter others. It requested a report from the Attorney General on the relevant statistics concerning aliens unlawfully reentering with prior serious offenses and subsequently enhanced the penalties therefor. The Sentencing Commission simply implemented the intent of Congress when it promulgated U.S.S.G. § 2L1.2(b), which increases the sentencing range for aliens with prior convictions. The fact of a prior conviction is relevant and properly considered in calculating offense level. United States v. Lara-Aceves, 183 F.3d 1007, 1013-14 (9th Cir.1999), overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001) (en banc); United States v. Blanco-Gallegos, 188 F.3d 1072, 1076 (9th Cir.1999). 3. The Apprendi Issue Defendant argues that his sentence is illegal because the fact of his pre-removal conviction must be proved beyond a reasonable doubt and it was not. The government points out that this argument presumes that Apprendi overrules Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which expressly provides that prior convictions may be treated as a sentencing factor. We have recently held that it does not. United States v. Pacheco-Zepeda, 234 F.3d 411, 413 (9th Cir.), cert. denied, — U.S. —, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001). Accordingly, the denial of the motion to suppress and request for an evidentiary hearing, and the judgment of the district court are AFFIRMED.'" }, { "docid": "5831831", "title": "", "text": "reasonable doubt. The Apprendi issue Maria-Gonzalez raises has been resolved by recent decisions of this court. The same argument he makes was made in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001). There, the defendant challenged the use of prior aggravated felonies to enhance his base offense level, relying on the same language of Apprendi that Maria-Gonzalez relies upon. We held that notwithstanding this language from Apprendi, the Court had not overruled Almendarez-Torres, and “ ‘[under] Almendarez-Torres, the government [is] not required to include [a defendant’s] pri- or aggravated felony convictions in the in dictment, submit them to a jury, or prove them beyond a reasonable doubt.’” Arellano-Rivera, 244 F.3d at 1127 (quoting United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000), as amended (Feb. 8.2001)). See also United States v. Castillo-Rivera, 244 F.3d 1020, 1024-25 (9th Cir.2001). Maria-Gonzalez’s Appren-di argument fails. V. The judgment of conviction entered by the district court included convictions for violations of both 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2). Section 1326(b)(2), however, does not define an offense; it is a sentence enhancing factor. Almendarez-Torres, 523 U.S. at 226, 118 S.Ct. 1219; United States v. Pacheco-Zepeda, 234 F.3d 411, 413 (9th Cir.2000). In order to reflect unambiguously that Maria-Gonzalez’s conviction is only for a violation of section 1326(a), the reference to section 1326(b)(2) should be stricken from the judgment. See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000). The proper procedure for correcting this error is to remand the case to the district court and direct that court to amend the judgment to reflect a conviction only of 8 U.S.C. § 1326(a). Rivera-Sanchez, 222 F.3d at 1062. Accordingly, we affirm Maria-Gonzalez’s sentence, but remand this case to the district court for that court to correct the judgment of conviction by deleting from it the reference to 8 U.S.C. § 1326(b)(2). Sentence AFFIRMED; case REMANDED. . There is some question as to when Maria-Gonzalez re-entered the United States. In his plea, Maria-Gonzalez stated that he had returned to the United States in 1997. However, employment records indicate that Maria-Gonzalez" }, { "docid": "22458360", "title": "", "text": "At his sentencing hearing, Ochoa-Gaytan conceded that he had been deported after having been convicted of an aggravated felony. The district court therefore sentenced Ochoa-Gaytan to more than two years imprisonment for his illegal reentry. Ochoa-Gaytan argues that 8 U.S.C. § 1326(b)(2) is a substantive offense rather than a sentencing factor. Consequently, he argues that he should have been exposed to no more than two years imprisonment because his indictment did not allege that he had previously been convicted, the issue was not presented to the jury, and the government did not prove beyond a reasonable doubt that he had been convicted of an aggravated felony. He argues that the district court’s imposition of a sixty-three month sentence was erroneous under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 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.” Apprendi, 120 S.Ct. at 2362-63. As the government correctly notes, our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000), which was filed after Ochoa-Gaytan filed his supplemental brief that addressed the effect of Apprendi on his case, forecloses Ochoa-Gaytan’s argument. In Pacheco-Zepeda, we considered the exact issue raised here. There, we considered the effect of Apprendi on Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres held that 8 U.S.C. § 1326(b)(2)-the statutory provision which was the basis for Ochoa-Gaytan’s enhanced sentence-“simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime.” Id. at 226, 118 S.Ct. 1219. As a result, recidivism is not an element of the crime defined by § 1326 and so need not be charged in the indictment and proved beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219. Ochoa-Gaytan argues that A-pprendi overrules Almendarez-Torres. However, in Paeheco-Zepeda, we held that the Apprendi Court “unmistakably carved out an exception for ‘prior convictions’ that specifically preserved the" }, { "docid": "5831821", "title": "", "text": "was expanded to include receipt of stolen property, the crime for which Maria-Gonzalez had been convicted. 8 U.S.C. § 1101(a)(43)(G) (1994 Supp. V) (defining aggravated felony to include all convictions for theft or burglary, including receipt of stolen property, for which a term of imprisonment of at least one year is imposed). Before sentencing, a United States probation officer prepared a Presentence Investigative Report (PIR). In the PIR, the probation officer classified Maria-Gonzalez’s 1992 conviction for receipt of stolen property as an aggravated felony. Because of that classification, the probation „ officer recommended a 16-level enhancement pursuant to Sentencing Guidelines § 2L1.2(b)(l)(A) (1999). In a pre-sentene-ing memorandum, Maria-Gonzalez challenged this recommendation. He argued that, because his 1992 conviction was not classified as an aggravated felony at the time of his 1993 deportation, the recommended sentence enhancement was improper. He also argued that in order to apply the 16-level enhancement, the government was required to prove his prior conviction beyond a reasonable doubt. On October 31, 2000, the district court adopted the recommendation of the probation officer, applied the 16-level enhancement and imposed the sentence Maria-Gonzalez challenges in this appeal. II. We review de novo whether the aggravated felony provisions of the Sentencing Guidelines apply to a conviction. United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir.2000). We also review de novo the district court’s interpretation of the Sentencing Guidelines, United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir.1996), and its interpretation of the constitutional rule expressed in Apprendi United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001). III. Aliens who return to the United States after deportation without the permission of the Attorney General are subject to two years’ imprisonment. 8 U.S.C. § 1326(a). This statutory base sentence is increased to a maximum of twenty years for aliens .whose prior deportation was “subsequent to a conviction for commission of an aggravated felony.” Id. § 1326(b)(2). The Sentencing Guidelines provide that if a “defendant previously was deported after a criminal conviction ... [and] if the conviction was for an aggravated felony, increase by 16 levels.” U.S.S.G. § 2L1.2(b)(l)(A)." }, { "docid": "2884304", "title": "", "text": "BRUNETTI, Circuit Judge: Moses Corona-Sanchez pled guilty to illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). He received a 77-month sentence, which reflects a sixteen-level enhancement of the base offense level, based on the district court’s finding that Corona-Sanchez reentered the United States after deportation and the commission of aggravated felony pursuant to 8 U.S.C. § 1326(b)(2) and United States Sentencing Guideline § 2L1.2(b)(l)(A). Corona-Sanchez challenges whether his conviction under California Penal Code §§ 488 and 666 constitutes an “aggravated felony” as that term is defined in 8 U.S.C. § 1101(a)(43)(G). We review de novo to determine whether the aggravated' felony provision is applicable. United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir.2000). We conclude that it is and affirm. I. As an initial matter, we note that in February 1998, Corona-Sanchez pled guilty to a one-count indictment which charged him with a violation of both 8 U.S.C. 1326(a) (being an alien found in the United States after deportation) and 8 U.S.C. § 1326(b)(2) (reentry after deportation and the commission of an aggravated felony). At that time, we considered § 1326(b)(2) to be a separate offense. See United States v. Gonzalez-Medina, 976 F.2d 570, 572 (9th Cir.1992). Shortly after Corona-Sanchez’s plea, the Supreme Court held that the fact of a prior aggravated felony conviction is not an element of the offense, but a sentencing factor to be applied by the court. See Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We recently confronted this precise factual situation in United States v. Rivera-Sanchez, 222 F.3d 1057, 1061-62 (9th Cir.2000). There we held that where an indictment charges a defendant with a violation of both § 1326(a) and § 1326(b)(2) in the same count, and the judgment reflects conviction under both provisions, “the proper procedure under these circumstances is to direct the district court to enter a corrected judgment striking the reference to § 1326(b)(2) so that the judgment will unambiguously reflect that the defendant was convicted of only one punishable offense pursuant to § 1326(a).”" } ]

[ { "docid": "8385909", "title": "", "text": "disciplinary actions except to uphold these minimum standards. International Bhd. of Boilermakers v. Hardeman, 401 U.S. 233, 242-44, 91 S.Ct. 609, 615-16, 28 L.Ed.2d 10 (1971); Bernstein, 1990 WL 91728, at *6. It is unsurprising, then, that courts faced with challenges arising under Section 101(a)(5) recognize that union disciplinary proceedings are not judicial proceedings, and therefore, the full panoply of procedural safeguards found in such proceedings are not required. See United States v. International Bhd. of Teamsters, 964 F.2d 1308, 1312-13 (2d Cir.1992) (upholding admission of hearsay in union disciplinary hearing); United States v. International Bhd. of Teamsters, 870 F.Supp. 557, 560-61 (S.D.N.Y.1994) (“Constitutional due process does not require a that union member has the power to subpoena witnesses to appear at a union disciplinary hearing”); Feltington v. Moving Pictures Mach. Operators’ Union, No. 77 Civ. 4417, 1977 WL 1807, at *5 (S.D.N.Y. Dec. 5, 1977) (‘“full and fair hearing’ requirement for union disciplinary actions does not include the full panoply of safeguards guaranteed to criminal defendants”); see also Mayle v. Laborer’s Intern., 866 F.2d 144, 146 (6th Cir.1988); Frye v. United Steelworkers, 767 F.2d 1216, 1223-24 (7th Cir.), cert. denied, 474 U.S. 1007, 106 S.Ct. 530, 88 L.Ed.2d 461 (1985); Ritz v. O’Donnell, 566 F.2d 731, 735 (D.C.Cir.1977). A handful of basic procedural components comprise the entirety of these safeguards. The most elemental procedural safeguard to which a union member subject to internal disciplinary proceedings is entitled “is an impartial trial body which arrives at its decision on the basis of evidence that the accused has an opportunity to rebut.” Berg v. Watson, No. 75 Civ. 1644, 1977 WL 1728, at *3 (S.D.N.Y. Aug. 24, 1977). A union member must be given “adequate notice and a reasonable opportunity to defend, including the right to confront an accuser, to present evidence and to cross-examine witnesses.” Feltington, 1977 WL 1807, at *3. The burden of proof regarding disciplinary charges against a union member is low — the charging party “must provide only “some evidence at the disciplinary hearing to support the charges made.” Hardeman, 401 U.S. at 234, 91 S.Ct. at" } ]

[ { "docid": "9336610", "title": "", "text": "objections before the proceedings, Local 125 officials refused to allow him professional legal representation. As the basis for this ruling, they cited an internal rule forbid ding non-union individuals from addressing union meetings. Those courts considering the argument that § 411(a)(5)(C) includes the right to counsel have rejected it. Smith v. Sheet Metal Workers International Association, 357 F.Supp. 1386, 1393 (E.D.Tenn.1972); Buresch v. International Brotherhood of Electrical Workers, Local 24, 343 F.Supp. 183, 191-92 (D.Md.1971), aff’d, 460 F.2d 1405 (4th Cir. 1972); Sawyers v. Grand Lodge International Association of Machinists, 279 F.Supp. 747, 756 (E.D.Mo.1967); Cornelio v. Metropolitan District Council, 243 F.Supp. 126, 128-29 (E.D.Pa.1965), aff’d, 358 F.2d 728 (3d Cir. 1966), cert. denied, 386 U.S. 975, 87 S.Ct. 1167, 18 L.Ed.2d 134 (1967). The plaintiff argues, however, that these cases are outdated because the flexible and changing notions of due process incorporated into the Landrum-Griffin Act now require that a union member accused of wrongdoing be represented, if he chooses, by a lawyer. To support the argument, the plaintiff reasons that a union member cannot receive a fair hearing without counsel because (1) unions may now impose drastic sanctions on members violating union rules which Congress did not originally foresee in enacting § 411(a)(5)(C), and (2) the Sixth Amendment has been construed to provide a right to counsel in minor criminal trials where the defendant faces a far more lenient penalty than the sanction imposed here. Congress did not expressly include a right to counsel in the Landrum-Griffin Act and the legislative history reveals that the action was deliberate. See H. Wellington, Union Fines and Workers’ Rights, 85 Yale L.J. 1022, 1031 (1976) (hereinafter “Wellington”). Though Congress passed the Act intending to incorporate the standards of due process into union disciplinary proceedings, Hardeman, 401 U.S. at 246, 91 S.Ct. at 617, Congress intended disciplinary proceedings to remain primarily under local union control, NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 194, 87 S.Ct. 2001, 2013, 18 L.Ed.2d 1123 (1967). The union, accordingly, has a significant interest in controlling its disciplinary proceedings. The interest, singled out for special concern when" }, { "docid": "8549057", "title": "", "text": "existence of “some evidence” to support the charges made, International Bhd. of Boilermakers v. Hardeman, 401 U.S. 233, 246, 91 S.Ct. 609, 617, 28 L.Ed.2d 10 (1971); (2) an impartial tribunal, Tincher, 520 F.2d at 854; (3) an opportunity to confront “pertinent witnesses,” Ritz, 566 F.2d at 735-36; and (4) an opportunity to present evidence, Tincher, 520 F.2d at 854. Plaintiffs allege due process violations in all aspects of the disciplinary hearing and review. Accordingly, the court will examine both the hearing and the review by the GEB, ultimately concluding that plaintiffs’ allegations must fail. a. The Disciplinary Hearing Plaintiffs attack three aspects of their disciplinary hearing as violative of their right to a full and fair trial: (1) two of the three Panel members, defendants Molinero and Robinson, were biased and loyal to defendant Carey; (2) the procedures employed during the hearing violated fundamental notions of procedural due process; and (3) the Panel members were unduly influenced by Joseph Pass, counsel for the Panel. After considering plaintiffs’ claims, the court shall reject them and find that plaintiffs have failed to establish that the disciplinary hearing violated their LMRDA due process rights. (1) Bias of Panel Members In order to sustain a claim that the Panel members (or as discussed later, the GEB members) were biased in violation of plaintiffs’ due process rights, plaintiffs must make specific factual allegations of bias that show that the panelists were incapable of hearing plaintiffs’ case impartially. See Frye, 767 F.2d at 1225; Yager II, at 17-18. “Courts ... are justified in ruling a union tribunal biased only upon a demonstration that it has been substantially actuated by improper motives____” Parks v. International Bhd. of Elec. Workers, 314 F.2d 886, 913 (4th Cir.1963), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963). Courts have found an impermissible bias in internal union hearings and reviews when a member of the tribunal prejudged the guilt of the accused member. See Goodman v. Laborers’ Int’l Union of N. Am., 742 F.2d 780 (3d Cir.1984); Falcone v. Dantinne, 420 F.2d 1157 (3d Cir.1969). In another" }, { "docid": "3903172", "title": "", "text": "labor organizations, employers, and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations . . . and in 29 U.S.C. § 411(a) (5): No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. The record before this Court indicates that plaintiff-appellant was served with requisite written specific charges under the law. Section 101(a)(5) (A) requires only that a “member subject to discipline be ‘served with written specific charges.’ These charges must be ‘specific enough to inform the accused member of the offense that he has allegedly committed’.” International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 245, 91 S.Ct. 609, 616, 28 L.Ed.2d 10 (1971). Charron undoubtedly was informed as to the nature of the alleged offenses with which he was charged in violation of the Union Constitution and in violation of his responsibilities as a union official under the law. Under all the apparent circumstances set out in the record, Charron was given ample time to prepare his defense and offered evidence at the hearing conducted under provisions of the Union Constitution. We are required only to determine whether there was “some evidence” offered by the Union to support the finding of guilt on some or all of the charges against appellant Charron in the disciplinary hearing. Boilermakers v. Hardeman, supra p. 246, 91 S.Ct. 609. Lewis v. AFSCME, 407 F.2d 1185 (3rd Cir. 1969), Burke v. Boilermakers, 417 F.2d 1063 (9th Cir. 1969). There appears to be no denial of due process with regard to the internal disciplinary proceedings of the International Union; Charron was, indeed, afforded a full and fair hearing at which some evidence of his guilt on a majority of the specified charges was adduced. For these reasons, in addition to those set out in Judge Pratt’s memorandum opinion below, the" }, { "docid": "9336608", "title": "", "text": "argues that, as a result, the complaint required him to speculate on the charges and the facts necessary to disprove them. The plaintiff’s testimony at trial, however, directly contradicts his argument on appeal. Curtis admitted at trial that he had read the complaint and understood the charges against him. Basing his finding on this testimony, the magistrate concluded that the complaint informed the plaintiff of the allegations against him and thus satisfied § 411(a)(5)(A). The plaintiff cites nothing to dispute the finding or to indicate it is clearly erroneous. A review of the complaint substantiates the magistrate’s conclusion. The complaint cogently informed the plaintiff of the union laws involved and eight particular instances of conduct allegedly transgressing those laws. The plaintiff’s presentation of his case and cross-examination of opposing witnesses at the disciplinary hearing indicates he understood those charges. The plaintiff does not contend his defense, where he denied forming the partnership with Gross and operating the theater projector, would have differed had the complaint taken another form. Rather, the gist of the plaintiff’s argument is that the complaint was insufficient because it failed to follow a format which criminal indictments invariably take and allege in a single unit the particular union law involved and facts demonstrating its violation. Though section 101(a)(5)(A) requires the charging document to contain “written specific charges,” it does not require the elaborate specificity of a criminal indictment. Ritz v. O’Donnell, 566 F.2d 731, 735 (D.C.Cir.1977); Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir. 1975); Eisman v. Baltimore Regional Joint Board of Amalgamated Clothing Workers of America, 352 F.Supp. 429, 435 (D.Md.1972), aff’d, 496 F.2d 1313 (4th Cir. 1974). The complaint need only contain “a detailed statement of the facts relating to the [incident] that formed the basis for the disciplinary action.” International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 245, 91 S.Ct. 609, 616, 28 L.Ed.2d 609 (1971). The document here satisfied that standard. III. The plaintiff also argues that the guarantee of a full and fair hearing under § 411(a)(5)(C) includes the right to be represented by a lawyer. Over the plaintiff’s" }, { "docid": "3233606", "title": "", "text": "of 29 U.S.C. § 411(a)(2), for supporting changes to the Local 461 job referral system. The defendants now move for summary judgment. Kauffman and Owen argue that there are disputed issues of material fact. II. Summary judgment is appropriate where the record and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party may not rest on its pleadings or on general denials of the moving party’s factual allegations, but must affirmatively demonstrate that there is a genuine issue of material fact that requires trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). III. A. Owen and Kauffman argue that their hearing before the Local 461 trial board did not satisfy the “full and fair hearing” requirement of the LMRDA, 29 U.S.C. § 411(a)(5)(C) because there was no evidence to support their conviction and because the proceedings themselves did not comport with due process requirements. My review of union disciplinary proceedings is limited. Gustafson v. American Train Dispatchers’ Assoc., 788 F.2d 1284, 1287 (7th Cir.1986). Although discipline hearings “need not contain ‘the full panoply of procedural safeguards found in criminal proceedings, the fundamental and traditional concepts of due process do apply.’ ” English v. Cowell, 969 F.2d 465, 469 (7th Cir.1992) (citations omitted). Section 411(a)(5)(C) requires the charging party to present “some evidence” at the hearing to support the charges made. Id. (citing International Bhd. of Boilermakers v. Hardeman, 401 U.S. 233, 245-46, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971)). To determine whether this minimal standard is satisfied, I need not examine the record, independently assess the credibility of the witnesses or weigh the evidence; I need only ask whether there is any" }, { "docid": "8549056", "title": "", "text": "only procedural rights stemming from internal union rules, but also all procedural rights afforded to accused members under “ ‘fundamental and traditional concepts of due process.’ ” Ritz v. O'Donnell, 566 F.2d 731, 735 (D.C.Cir.1977) (quoting Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir.1975)). Plaintiffs claim that the disciplinary hearing and subsequent review by the GEB denied them several of these fundamental rights. As this court described in its previous opinion, “[a]lthough union members are clearly entitled to the fundamental elements of due process in their disciplinary hearings, the procedures of a union hearing need not be as rigorous as a federal court’s [procedures].” Yager II, at 12. A charged member, for example, has no right to be represented by counsel, nor does the member have a right to the “technical rules of pleading, procedure and evidence.” Frye v. United Steelworkers of Am., 767 F.2d 1216, 1224 (7th Cir.1985), cert. denied, 474 U.S. 1007, 106 S.Ct. 530, 88 L.Ed.2d 461 (1985). Therefore, the fundamental due process rights guaranteed under the LMRDA include: (1) the existence of “some evidence” to support the charges made, International Bhd. of Boilermakers v. Hardeman, 401 U.S. 233, 246, 91 S.Ct. 609, 617, 28 L.Ed.2d 10 (1971); (2) an impartial tribunal, Tincher, 520 F.2d at 854; (3) an opportunity to confront “pertinent witnesses,” Ritz, 566 F.2d at 735-36; and (4) an opportunity to present evidence, Tincher, 520 F.2d at 854. Plaintiffs allege due process violations in all aspects of the disciplinary hearing and review. Accordingly, the court will examine both the hearing and the review by the GEB, ultimately concluding that plaintiffs’ allegations must fail. a. The Disciplinary Hearing Plaintiffs attack three aspects of their disciplinary hearing as violative of their right to a full and fair trial: (1) two of the three Panel members, defendants Molinero and Robinson, were biased and loyal to defendant Carey; (2) the procedures employed during the hearing violated fundamental notions of procedural due process; and (3) the Panel members were unduly influenced by Joseph Pass, counsel for the Panel. After considering plaintiffs’ claims, the court shall reject them and" }, { "docid": "10037997", "title": "", "text": "non-payment of dues by such organization or by any officer thereof unless such member has been ... afforded a full and fair hearing. 29 U.S.C. § 411(a)(5) (1982). Caloumeno alleges that the defendants did not provide him with a full and fair hearing within the meaning of this section. First, he argues that the Board’s decision was based on the ex post facto application of a prohibition which was not contained in the CSEA Constitution or By-Laws until after the acts of which defendants complain. He also alleges that the charges against him constituted selective and discriminatory prosecution. Both of these complaints are directed to the subject matter of the hearing, rather than the manner in which the hearing was conducted. They therefore do not state a claim for a violation of section 101(a)(5). See International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 245, 91 S.Ct. 609, 616-17, 28 L.Ed.2d 10 (1971) (section 101(a)(5) “gives courts no warrant to scrutinize the union regulations in order to determine whether particular conduct may be punished”). Caloumeno next complains that he was unfairly denied access to the Board’s tapes of the disciplinary hearing. Neither the CSEA By-Laws nor the Board’s procedural rules require that an official record of the hearings be made. However, both the By-Laws and the procedural rules permit either the Board or the parties before it to make their own tape or transcript. Caloumeno was on notice that the Board’s tapes would not be available to him and chose not to make his own tape or transcript. Therefore, his reliance on the Second Circuit’s decisions in Rosario v. Amalgamated Ladies’ Garment Cutters Union, 605 F.2d 1228 (2d Cir.1979) and Feltington v. Moving Picture Machine Operators, 605 F.2d 1251 (2d Cir.1979), is misplaced. Those cases held that when a union refuses to make a transcript of the hearing available to a party, it cannot refuse permission for that party to make his own tape or transcript. Since Caloumeno was given permission to make his own tape and chose not to do so, the Board did not violate his LMRDA fair" }, { "docid": "21889587", "title": "", "text": "of Boilermakers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971), where the Court stated: “Section 101(a)(5)(C) of the LMRDA guarantees union members a ‘full and fair’ disciplinary hearing, and the parties and the lower federal courts are in full agreement that this guarantee requires the charging party to provide some evidence at the disciplinary hearing to support the charges made. This is the proper standard of judicial review. We have repeatedly held that conviction on charges unsupported by any evidence is a denial of due process, (citations omitted); and we feel that § 101(a)(5)(C) may fairly be said to import a similar require ment into union disciplinary proceedings.” 401 U.S. at 245-246, 91 S.Ct. at 617. In the instant case, none of the procedural safeguards of Section 101(a)(5) were afforded plaintiff prior to his being disciplined on November 27, 1971, and no hearing was afforded plaintiff' prior to the ultimate denial of his working privileges on December 20, 1971. The Union did not undertake to notify plaintiff of his right to hearing to rebut the Union’s charges, but disciplined and ultimately suspended him on the basis of newspaper clippings and information supplied by unidentified informants. The undisputed facts before the Court compel the conclusion that plaintiff was disciplined without being afforded the rights guaranteed by Section 101(a)(5) and, accordingly, plaintiff’s motion for summary judgment will be granted. This matter will continue for assessment of damages and such other relief as is justified. . In the light of this conclusion, we make no finding on the question whether the other action taken against plaintiff constituted “discipline” within the purview of the Act. . In so deciding, we do not reach plaintiff’s contention that the Union remedies are uncertain, illusory and inadequate." }, { "docid": "13116889", "title": "", "text": "— Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations. (a)(5) Safeguards against improper disciplinary action. — -No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. This being a remedial statute, it should be liberally but reasonably applied. In the context of the case at bar, we believe a full and fair hearing requires that an impartial tribunal, selected in accordance with the Union’s bylaws, arrive at its decision on the basis of evidence which the accused member can see and hear and has an opportunity to rebut. This court is not empowered to inquire into the merits of the charges brought against the plaintiff, so long as he receives a “full and fair hearing” on them. International Brotherhood of Boilermakers, etc. v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971). Because of prejudicial shortcomings in the manner in which the plaintiff was accorded his hearing, however, we find and conclude that the defendant union Local 1091 violated Section 101(a)(5)(C) and that the plaintiff is entitled to relief against this defendant. The charges were preferred against the plaintiff by Paul Markonni, the International Representative who serviced Local 1091 and was formerly" }, { "docid": "9336609", "title": "", "text": "is that the complaint was insufficient because it failed to follow a format which criminal indictments invariably take and allege in a single unit the particular union law involved and facts demonstrating its violation. Though section 101(a)(5)(A) requires the charging document to contain “written specific charges,” it does not require the elaborate specificity of a criminal indictment. Ritz v. O’Donnell, 566 F.2d 731, 735 (D.C.Cir.1977); Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir. 1975); Eisman v. Baltimore Regional Joint Board of Amalgamated Clothing Workers of America, 352 F.Supp. 429, 435 (D.Md.1972), aff’d, 496 F.2d 1313 (4th Cir. 1974). The complaint need only contain “a detailed statement of the facts relating to the [incident] that formed the basis for the disciplinary action.” International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 245, 91 S.Ct. 609, 616, 28 L.Ed.2d 609 (1971). The document here satisfied that standard. III. The plaintiff also argues that the guarantee of a full and fair hearing under § 411(a)(5)(C) includes the right to be represented by a lawyer. Over the plaintiff’s objections before the proceedings, Local 125 officials refused to allow him professional legal representation. As the basis for this ruling, they cited an internal rule forbid ding non-union individuals from addressing union meetings. Those courts considering the argument that § 411(a)(5)(C) includes the right to counsel have rejected it. Smith v. Sheet Metal Workers International Association, 357 F.Supp. 1386, 1393 (E.D.Tenn.1972); Buresch v. International Brotherhood of Electrical Workers, Local 24, 343 F.Supp. 183, 191-92 (D.Md.1971), aff’d, 460 F.2d 1405 (4th Cir. 1972); Sawyers v. Grand Lodge International Association of Machinists, 279 F.Supp. 747, 756 (E.D.Mo.1967); Cornelio v. Metropolitan District Council, 243 F.Supp. 126, 128-29 (E.D.Pa.1965), aff’d, 358 F.2d 728 (3d Cir. 1966), cert. denied, 386 U.S. 975, 87 S.Ct. 1167, 18 L.Ed.2d 134 (1967). The plaintiff argues, however, that these cases are outdated because the flexible and changing notions of due process incorporated into the Landrum-Griffin Act now require that a union member accused of wrongdoing be represented, if he chooses, by a lawyer. To support the argument, the plaintiff reasons that a union member" }, { "docid": "15746299", "title": "", "text": "in the district court seeking to enjoin ALPA and its officers from enforcing the decision of the Appeal Board. Captain Ritz contended, inter alia, that he was denied a “full and fair hearing” as required by section 101 of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411; that the disciplinary action was instituted in retaliation for his opposition to the policies of the union’s leadership; and that there was insufficient evidence to sustain the decision of ALPA’s Appeal Board. The district court rejected these allegations and granted summary judgment for the defendants. Ritz v. O’Donnell, 413 F.Supp. 1365 (1976). For the reasons discussed below, we affirm the decision of the district court. I. ALLEGED DENIAL OF A FAIR HEARING The charging parties, the individual defendants in this action, did not appear at either the Hearing or Appeal Board proceedings. The plaintiff alleges that this prevented him from exercising his right of confrontation and cross-examination, and thereby denied him the “full and fair hearing” he was entitled to under section 101(a)(5)(C) of the LMRDA, 29 U.S.C. § 411(a)(5)(C). While section 101(a)(5)(C) prohibits the disciplining of any member by a union unless he is afforded a “full and fair hearing”, the member need not necessarily be provided with the full panoply of procedural safeguards found in criminal proceedings. Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir. 1975). In determining whether a full and fair hearing has been afforded a member, the “fundamental and traditional concepts of due process” serve as the basis for decision. Tincher v. Piasecki, supra; Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 912 (4th Cir.), cert. den., 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963). The courts have uniformly recognized that the right of confrontation and cross-examination of witnesses is fundamental to the “full and fair hearing” requirement, Parks v. IBEW, supra. They have also uniformly declared that union members who knowingly fail to exercise rights guaranteed or offered them in connection with union disciplinary proceedings have waived those rights. Indeed, even under the more stringent procedural due process standards" }, { "docid": "9336622", "title": "", "text": "where the prosecutor recommends a sentence to the court after the accused is convicted. The union membership was the ultimate arbiter of the penalty imposed. The members could easily discern the potential conflict in McLachlan’s position and recognize that a recommendation from a leadership committee with members closely aligned to one litigant may not reflect the best interests of the local. The plaintiff was not denied a fair hearing simply because the union leadership recommended a penalty which the membership body was free to accept or reject. Moreover, any influence McLachlan may have had was well-diluted. Casting one of five votes on a committee with authority only to recommend a penalty, he had little opportunity to affect the proceedings. In addition, the record at the hearing reveals that some union members were hardly reluctant to answer, criticize, or even ridicule the union official presiding at the hearing. In light of those frank and critical comments made at a time when it was clear that McLachlan was attempting to frustrate union by-laws in order to bolster the case against Curtis, it appears that McLachlan’s participation with the executive committee did not influence the membership’s decision. VI. Section 101(a)(5)(C), 29 U.S.C. § 411(a)(5)(C), also requires that at least some evidence presented at the hearing support the union’s decision. Section 101(a)(5)(C) of the [LandrumGriffin Act] guarantees union members a “full and fair” disciplinary hearing, and the parties and the lower federal courts are in full agreement that this guarantee requires the charging party to provide some evidence at the disciplinary hearing to support the charges made. This is the proper standard of judicial review. We have repeatedly held that conviction on charges unsupported by any evidence is a denial of due process, and we feel that § 101(a)(5)(C) may fairly be said to import a similar requirement into union disciplinary proceedings. Hardeman, 401 U.S. at 245-46, 91 S.Ct. at 616 (citations omitted). The plaintiff contends that no evidence was presented to support the decision on two of the eight charges. The complaint charged that Curtis failed to file monthly worksheets with the local" }, { "docid": "11723281", "title": "", "text": "speech. The defendants also challenge the district court’s use of this standard. Black argued that the local union violated § 411(a)(2) by bringing charges against him for participating in the picket line; that Joint Council 87 violated § 411 by finding him guilty of the charges and punishing him; and that the local violated the statute when it retaliated against him through its use of the out-of-work book. The defendants argue that Black improperly presented this case as a first amendment case. They contend that Congress intended § 411 to grant the specified rights only when such rights are exercised in accordance with the reasonable rules of the union. As stated, the union’s first argument is that the district court should not have allowed the jury to conduct a de novo review of the union’s determination in this case. Local 519 and Joint Council 87 argue that when a union member is disciplined for violating a reasonable rule, the discipline is proper if it simply complies with the specific due process rights listed in § 411. Section 411(a)(5) specifies that a union member must be served with specific charges, given a reasonable time to prepare a defense, and afforded a full and fair hearing. The defendants rely on International Bhd.. of Boilermakers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971), which dealt with the proper standard for determining whether a union has afforded the accused member a full and fair hearing on the charges against him. The Boilermakers court held that in reviewing the procedural sufficiency of such a case under § 411, a court should not substitute its judgment for that of the union, but only examine whether the union provided “some evidence at the disciplinary hearing to support the charges made.” Id. at 246, 91 S.Ct. at 617 (footnote omitted). Local 519 and Joint Council 87 argue that this “some evidence” standard was the appropriate one in this case, and the district court should not have conducted a de novo review of the union’s action against Black. Black argues that the standard rule followed" }, { "docid": "17725165", "title": "", "text": "The Board then fined plaintiff Ritz $500, to be paid by November 22,1975. Following a status call before the Court, the parties agreed that the Appeal Board would withhold action on the fine until ten days after this Court had ruled on plaintiff’s motion for injunctive relief and defendants’ motions for summary judgment. Subsequently, plaintiff also moved for summary judgment, and the cross-motions are now before the Court. PROCEDURAL IRREGULARITIES Plaintiff Ritz challenges the Appeal Board decision on several grounds, which will be discussed seriatim. Prior to doing so, however, it is helpful to set out the principles by which the actions of the Appeal Board are to be judged. Violation of the union constitution and bylaws does not per se amount to a violation of the LMRDA. See Martire v. Laborers’ Local Union 1058, 410 F.2d 32, 36, (3d Cir.), cert. denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969); Navarro v. Gannon, 385 F.2d 512, 516 n. 6 (2d Cir. 1967), cert. denied, 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294 (1968); McGovern v. New Orleans Clerks & Checkers, Local 1497 ILA, 343 F.Supp. 351, 352 (E.D.La.1972); Buresch v. International Broth, of Elec. Workers, Local 24, 343 F.Supp. 183, 189 (D.Md.1971), aff’d, 460 F.2d 1405 (4th Cir. 1972); Null v. Carpenters District Council of Houston, 239 F.Supp. 809, 814 (S.D.Texas 1965). Rather, the Court must address itself to the question “whether in fact the plaintiff was served with written specific charges and given a reasonable opportunity to prepare his defense and afforded a full and fair hearing as required by Section 411(a)(5) of the Labor-Management Reporting and Disclosure Act.” Buresch, supra at 190, quoting from Null, supra at 814. In determining whether “a full and fair hearing” has been afforded plaintiff, “constitutional due process requirements” serve as the basis for decision. See Parks v. International Brotherhood of Elec. Workers, 314 F.2d 886, 912 (4th Cir.), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963); cf. Boilermakers v. Hardeman, 401 U.S. 233, 246, 91 S.Ct. 609, 617, 28 L.Ed.2d 10 (1971) (section 101(a)(5)(C)" }, { "docid": "1430252", "title": "", "text": "in the district court their intra-union appellate remedies had long since expired. There was therefore no assurance that the plaintiffs would have been able to vindicate their rights through union procedures. . We are unimpressed by the Union’s argument that judicial review of the intra-union proceedings is precluded since the disciplinary actions taken against the plaintiffs were supported by “some evidence” of guilt. The Union’s reliance on International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971) is misplaced. Unlike the question presented in Hardeman, the infirmity is not in the procedure used or the method of discipline, but in the fact that the discipline is being imposed for an improper purpose. To adopt the Union’s reading of Hardeman would have the effect of “insulating] any Union discipline of a member, so long as the charges brought against him are supported by ‘some evidence’, no matter how insubstantial or suspicious that evidence might be.” NLRB v. Local 294, International Brotherhood of Teamsters, supra, 470 F.2d at 62. We will not adopt such a reading. In Hardeman the Supreme Court stated: “There remains only the question whether the evidence in the union disciplinary proceeding was sufficient to support the finding of guilt. Section 101(a)(5)(C) of the LMRDA guarantees union members a ‘full and fair’ disciplinary hearing, and the parties and the lower federal courts are in full agreement that this guarantee requires the charging party to provide some evidence at the disciplinary hearing to support the charges made. This is the proper standard for judicial review. We have repeatedly held that conviction on charges unsupported by any evidence is a denial of due process [citations omitted] and we feel that § 101(a)(5)(C) may fairly be said to import a similar requirement into union disciplinary proceedings.” Hardeman, supra, 401 U.S. at 245-246, 91 S.Ct. at 617. The Second Circuit in NLRB v. Local 294, International Brotherhood of Teamsters, supra,, the Honorable Leonard P. Moore speaking for the Court, interpreted the above passage as follows: “The clear import of the language cited is not that ‘some evidence’" }, { "docid": "3233607", "title": "", "text": "argue that their hearing before the Local 461 trial board did not satisfy the “full and fair hearing” requirement of the LMRDA, 29 U.S.C. § 411(a)(5)(C) because there was no evidence to support their conviction and because the proceedings themselves did not comport with due process requirements. My review of union disciplinary proceedings is limited. Gustafson v. American Train Dispatchers’ Assoc., 788 F.2d 1284, 1287 (7th Cir.1986). Although discipline hearings “need not contain ‘the full panoply of procedural safeguards found in criminal proceedings, the fundamental and traditional concepts of due process do apply.’ ” English v. Cowell, 969 F.2d 465, 469 (7th Cir.1992) (citations omitted). Section 411(a)(5)(C) requires the charging party to present “some evidence” at the hearing to support the charges made. Id. (citing International Bhd. of Boilermakers v. Hardeman, 401 U.S. 233, 245-46, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971)). To determine whether this minimal standard is satisfied, I need not examine the record, independently assess the credibility of the witnesses or weigh the evidence; I need only ask whether there is any relevant evidence in the record that could support the conclusion reached by the disciplinary board. See Superintendent, M.C.I. v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (applying the “some evidence” standard in the context of prison disciplinary hearings). Kauffman and Owen argue that there was “no evidence” to support their conviction and that the hearings were “devoid of any proof of compensation or payment” for their work at Gargo’s house. Branson testified that Owen told him at the construction site that Gargo was a friend, that Gargo owned a condominium in Florida, that Owen took “condo” time from Gargo and that Kauffman was “looking for condo time down in Florida.” (Defendant’s 56.1(a)(3) Statement ¶ 52). Kauffman and Owen dispute the truth of the statement, i.e., that Owen ever told Branson that, but they admit that Branson testified that way. (Plaintiffs’ 56.1(b)(3)(A) Response ¶ 52). Branson’s testimony is evidence, and the trial board made an independent assessment of its credibility and weight and concluded that Branson was telling the truth. Kauffman" }, { "docid": "17725166", "title": "", "text": "1294 (1968); McGovern v. New Orleans Clerks & Checkers, Local 1497 ILA, 343 F.Supp. 351, 352 (E.D.La.1972); Buresch v. International Broth, of Elec. Workers, Local 24, 343 F.Supp. 183, 189 (D.Md.1971), aff’d, 460 F.2d 1405 (4th Cir. 1972); Null v. Carpenters District Council of Houston, 239 F.Supp. 809, 814 (S.D.Texas 1965). Rather, the Court must address itself to the question “whether in fact the plaintiff was served with written specific charges and given a reasonable opportunity to prepare his defense and afforded a full and fair hearing as required by Section 411(a)(5) of the Labor-Management Reporting and Disclosure Act.” Buresch, supra at 190, quoting from Null, supra at 814. In determining whether “a full and fair hearing” has been afforded plaintiff, “constitutional due process requirements” serve as the basis for decision. See Parks v. International Brotherhood of Elec. Workers, 314 F.2d 886, 912 (4th Cir.), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963); cf. Boilermakers v. Hardeman, 401 U.S. 233, 246, 91 S.Ct. 609, 617, 28 L.Ed.2d 10 (1971) (section 101(a)(5)(C) requires “ ‘usual reasonable constitutional basis’ for disciplinary act ion”). With these principles in mind, each of plaintiff Ritz’s complaints will be reviewed individually. (1) Failure of Five Appeal Board Members to Contribute to Decision. Plaintiff Ritz first complains that only four members of the Appeal Board decided his appeal in contravention of the union constitution and bylaws, Article VIII, Sec. 7. Section 7 states that “[a]n Appeal Board shall be established to hear cases appealed to it” and that “[t]he Appeal Board shall be composed of five regular and three alternate members.” If in a particular case, the charged party exercises his peremptory challenge to remove one of the regular members, “one of the alternates selected by the challenger shall become a regular member of the Board for hearing the subject case.” The rule clearly contemplates that five members will hear each ease, although nowhere does it expressly state this. Violation of the rule, however, does not amount to a denial of a full and fair hearing. There is no requirement that the decision" }, { "docid": "11723282", "title": "", "text": "411. Section 411(a)(5) specifies that a union member must be served with specific charges, given a reasonable time to prepare a defense, and afforded a full and fair hearing. The defendants rely on International Bhd.. of Boilermakers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971), which dealt with the proper standard for determining whether a union has afforded the accused member a full and fair hearing on the charges against him. The Boilermakers court held that in reviewing the procedural sufficiency of such a case under § 411, a court should not substitute its judgment for that of the union, but only examine whether the union provided “some evidence at the disciplinary hearing to support the charges made.” Id. at 246, 91 S.Ct. at 617 (footnote omitted). Local 519 and Joint Council 87 argue that this “some evidence” standard was the appropriate one in this case, and the district court should not have conducted a de novo review of the union’s action against Black. Black argues that the standard rule followed by courts when evaluating a union member’s claim that he has been subjected to discipline or other adverse action because of free speech activities is to evaluate the evidence of the union’s motivation de novo, based on a preponderance of the evidence presented at trial. See, e.g., Petramale v. Local 17 of Laborers Int’l Union of N. Am., 736 F.2d 13, 18 (2d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 593, 83 L.Ed.2d 702 (1984). Black contends that the defendants’ reliance on the Boilermakers case is misplaced. In that case, the union member had been charged with punching a union officer, and the question was whether, in imposing discipline for this action, the union had violated the due process provision of the LMRDA, 29 U.S.C. § 411(a)(5). The Boilermakers court held that although the due process provisions required some judicial review, such review would be limited to deciding whether there was “some evidence” supporting the charges. In Boilermakers, however, no claim was raised under the free speech provision of the LMRDA. As the Supreme" }, { "docid": "3903171", "title": "", "text": "by Council 23, Charron represented by counsel was tried on the charges by the acting Chairman of AFSCME’s Judicial Panel. Charron was found guilty of some eight of the charges, acquitted on the others, and ordered expelled from membership. After unsuccessfully appealing this decision to the Full Judicial Panel and the International Convention of AFSCME, Charron brought this action under Title I of the Landrum-Griffin Act (29 U.S.C. § 401 et seq.) against the Union seeking restoration of his offices and membership, damages, and an injunction in the United States District Court at Detroit. After a trial, the United States District Judge granted defendant Union’s motion for summary judgment. Charron appeals from Judge Pratt’s order asserting error (1) with respect to specificity of the charges against him, and (2) that Charron was not afforded a “full and fair hearing.” In enacting the Landrum-Griffin Act, Congress set out, 29 U.S.C. § 401(a) that: The Congress finds . . . that in order to accomplish the objective of a free flow of commerce it is essential that labor organizations, employers, and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations . . . and in 29 U.S.C. § 411(a) (5): No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. The record before this Court indicates that plaintiff-appellant was served with requisite written specific charges under the law. Section 101(a)(5) (A) requires only that a “member subject to discipline be ‘served with written specific charges.’ These charges must be ‘specific enough to inform the accused member of the offense that he has allegedly committed’.” International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 245, 91 S.Ct. 609, 616, 28 L.Ed.2d 10 (1971). Charron undoubtedly was informed as to the nature of the alleged offenses with which he was" }, { "docid": "21889586", "title": "", "text": "be reasonably drawn from the letter. It is undisputed that prior to that date plaintiff was not served with specific written charges; he was not afforded a reasonable time to prepare his defense; and he was not afforded a full and fair hearing. Moreover, plaintiff lost his priority in the Union as a result of the Executive Board determination until he ceased operating and divested himself of any interest in the purported company. The loss of priority was effective immediately and would continue until plaintiff either complied with the Union’s demand or demonstrated, on appeal, that he did not operate such an establishment. Such a sanction clearly constituted “discipline” within the meaning of the act. The letter dated December 20, 1971, ultimately denied plaintiff working privileges in the Union, in effect, suspending him. It is undisputed that no hearing was conducted and that plaintiff was not notified of his right to a hearing. The importance of the “full and fair hearing” provision of Section 101(a)(5) was recently emphasized by the Supreme Court in Int’l Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971), where the Court stated: “Section 101(a)(5)(C) of the LMRDA guarantees union members a ‘full and fair’ disciplinary hearing, and the parties and the lower federal courts are in full agreement that this guarantee requires the charging party to provide some evidence at the disciplinary hearing to support the charges made. This is the proper standard of judicial review. We have repeatedly held that conviction on charges unsupported by any evidence is a denial of due process, (citations omitted); and we feel that § 101(a)(5)(C) may fairly be said to import a similar require ment into union disciplinary proceedings.” 401 U.S. at 245-246, 91 S.Ct. at 617. In the instant case, none of the procedural safeguards of Section 101(a)(5) were afforded plaintiff prior to his being disciplined on November 27, 1971, and no hearing was afforded plaintiff' prior to the ultimate denial of his working privileges on December 20, 1971. The Union did not undertake to notify plaintiff of his right to" } ]

[ { "docid": "22751916", "title": "", "text": "policies. 20 U. S. C. §§ 1412(1), 1413(a). Such plans must assure that, “to the maximum extent appropriate,” States will “mainstream” disabled children, i. e., that they will educate them with children who are not disabled, and that they will segregate or otherwise remove such children from the regular classroom setting “only when the nature or severity of the handicap is such that education in regular classes . . . cannot be achieved satisfactorily.” § 1412(5). The primary vehicle for implementing these congressional goals is the “individualized educational program” (IEP), which the EHA mandates for each disabled child. Prepared at meetings between a representative of the local school district, the child’s teacher, the parents or guardians, and, whenever appropriate, the disabled child, the IEP sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. § 1401(19). The IEP must be reviewed and, where necessary, revised at least once a year in order to ensure that local agencies tailor the statutorily required “free appropriate public education” to each child’s unique needs. § 1414(a)(5). Envisioning the IEP as the centerpiece of the statute’s education delivery system for disabled children, and aware that schools had all too often denied such children appropriate educations without in any way consulting their parents, Congress repeatedly emphasized throughout the Act the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness. See §§ 1400(c), 1401(19), 1412(7), 1415(b)(1)(A), (C), (D), (E), and 1415(b)(2). Accordingly, the Act establishes various procedural safeguards that guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate. These safeguards include the right to examine all relevant records pertaining to the identification, evaluation, and educational placement of their child; prior written notice whenever the responsible educational agency proposes (or refuses) to change the child’s placement or program; an opportunity to present complaints" } ]

[ { "docid": "14184354", "title": "", "text": "“to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living .... ” 20 U.S.C. § 1400(d)(1)(A). State and local educational agencies are eligible for federal assistance if they have in effect policies and procedures to ensure that they provide a free appropriate public education (“FAPE”) to disabled students. Id. § 1412. The Supreme Court has held that in order to satisfy its duty to provide FAPE, a state or local educational agency must provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Bd. of Educ. v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049, 73 L.Ed.2d 690 (1982). The Supreme Court has developed a test for determining whether a school board has provided FAPE in cases arising under the IDEA: “(1) whether the state actor has complied with the procedures set forth in the IDEA, and (2) whether the [individualized educational program] developed pursuant to the IDEA is reasonably calculated to enable the child to receive educational benefit.” Sch. Bd. v. K.C., 285 F.3d 977, 982 (2002) citing Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051. This standard, that the local school system must provide the child “some educational benefit,” Rowley, 458 U.S. at 200, 102 S.Ct. at 3048, has become known as the Rowley “basic floor of opportunity” standard. JSK v. Sch. Bd., 941 F.2d 1563, 1572-73 (11th Cir.1991) (“The ... educational outcome need not maximize the child’s education. If the educational benefits are adequate based on surrounding and supporting facts, [IDEA] requirements have been satisfied.”) (internal citations omitted). Specifically, the IDEA mandates that schools and parents together develop an individualized education program (“IEP”), a written statement for each disabled child that includes, inter alia, “a statement of the child’s present levels of academic achievement and functional performance ...; a statement of measurable annual goals ...; [and] a statement of the special education and related services ... to be provided" }, { "docid": "13504351", "title": "", "text": "lack of jurisdiction. The School Board is correct. Under the IDEA, the federal government infuses states with funds “for the education of children with disabilities, guaranteeing disabled children between the ages of three and twenty-one access to a free, appropriate, public education (FAPE).” Erickson v. Albuquerque Pub. Schs., 199 F.3d 1116, 1118 (10th Cir.1999). To receive federal funding, states must follow the IDEA’S regulations, including identifying, locating, and evaluating children residing in the State who are disabled and “who are in need of special education and related services.” 20 U.S.C. § 1412(3)(A). The IDEA defines a “free appropriate public education” as “special education and related services” that: “(A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.” 20 U.S.C. § 1401(8). The IEP required by the IDEA is prepared during a meeting of the IEP Team, including the child’s teacher, a special education professional, and the child’s parent(s). See Erickson, 199 F.3d at 1118. Among other things, the IEP reflects the child’s abilities, special education goals, and the particular services the child will receive in furtherance of those goals. See id. The IEP must be reviewed at least annually and revised as necessary to ensure an appropriate education. See 20 U.S.C. § 1414(d)(4)(A). The IDEA provides a variety of procedural safeguards to protect parents. See 20 U.S.C. § 1415(d). Parents have the opportunity to “present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” See 20 U.S.C. § 1415(b)(6). They must receive written notification of procedural safeguards when schools take certain actions. See 20 U.S.C. § 1415(d). Additionally, before a child subject to the IDEA may be disciplined, a manifestation determination must be made by the child’s IEP Team. See 20 U.S.C. § 1415(k)(4)." }, { "docid": "19537953", "title": "", "text": "for a commitment: to furnish a \"free appropriate public education\"-more concisely known as a FAPE-to all children with certain physical or intellectual disabilities. Ibid. ; see § 1401(3)(A)(i) (listing covered disabilities). As defined in the Act, a FAPE comprises \"special education and related services\"-both \"instruction\" tailored to meet a child's \"unique needs\" and sufficient \"supportive services\" to permit the child to benefit from that instruction. §§ 1401(9), (26), (29) ; see Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). An eligible child, as this Court has explained, acquires a \"substantive right\" to such an education once a State accepts the IDEA's financial assistance. Smith v. Robinson, 468 U.S. 992, 1010, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). Under the IDEA, an \"individualized education program,\" called an IEP for short, serves as the \"primary vehicle\" for providing each child with the promised FAPE. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ; see § 1414(d). (Welcome to-and apologies for-the acronymic world of federal legislation.) Crafted by a child's \"IEP Team\"-a group of school officials, teachers, and parents-the IEP spells out a personalized plan to meet all of the child's \"educational needs.\" §§ 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B). Most notably, the IEP documents the child's current \"levels of academic achievement,\" specifies \"measurable annual goals\" for how she can \"make progress in the general education curriculum,\" and lists the \"special education and related services\" to be provided so that she can \"advance appropriately toward [those] goals.\" §§ 1414(d)(1)(A)(i)(I), (II), (IV)(aa). Because parents and school representatives sometimes cannot agree on such issues, the IDEA establishes formal procedures for resolving disputes. To begin, a dissatisfied parent may file a complaint as to any matter concerning the provision of a FAPE with the local or state educational agency (as state law provides). See § 1415(b)(6). That pleading generally triggers a \"[p]reliminary meeting\" involving the contending parties, § 1415(f)(1)(B)(i) ; at their option, the parties may instead (or also) pursue a full-fledged mediation process, see § 1415(e). Assuming" }, { "docid": "22870013", "title": "", "text": "sets up general procedural safeguards that protect the informed involvement of parents in the development of an education for their child. See, e. g., § 1415(a) (requiring States to “establish and maintain procedures ... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education”); § 1415(b)(1) (mandating that States provide an opportunity for parents to examine all relevant records). See generally §§1414, 1415. A central purpose of the parental protections is to facilitate the provision of a “‘free appropriate public education,’” §1401(9), which must be made available to the child “in conformity with the [IEP],” §1401(9)(D). The Act defines a “free appropriate public education” pursuant to an IEP to be an educational instruction “specially designed ... to meet the unique needs of a child with a disability,” § 1401(29), coupled with any additional “ ‘related services’ ” that are “required to assist a child with a disability to benefit from [that instruction],” § 1401(26)(A). See also § 1401(9). The education must, among other things, be provided “under public supervision and direction,” “meet the standards of the State educational agency,” and “include an appropriate preschool, elementary school, or secondary school education in the State involved.” Ibid. The instruction must, in addition, be provided at “no cost to parents.” § 1401(29). See generally Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176 (1982) (discussing the meaning of “free appropriate public education” as used in the statutory precursor to IDEA). When a party objects to the adequacy of the education provided, the construction of the IEP, or some related matter, IDEA provides procedural recourse: It requires that a State provide “[a]n opportunity for any party to present a complaint . . . with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” § 1415(b)(6). By presenting a complaint a party is able to pursue a process of review that, as relevant, begins with" }, { "docid": "2395748", "title": "", "text": "690 F.3d at 399 (\"This is because grading and advancement in regular classrooms monitor a child’s progress, and the \"system itself” confirms the extent of the educational benefit to the child.”), citing Rowley, 458 U.S. at 203, 102 S.Ct. 3034. \"Nevertheless, the educational benefit to which the [IDEA] refers and to which an IEP must be geared cannot be a mere modicum or de minimis ; rather an IEP must be likely to produce progress, not regression or trivial educational advancement.” Michael F., 118 F.3d at 248. The IEP is a collaborative effort and provides procedural safeguards to insure that the parents and children with disabilities are involved in the creation and implementation of the individualized program. . The statute under the first prong -lists the following as qualifying disabilities: “intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness, serious emotional disturbance ..., orthopedic impairments, autism, traumatic brain injury, or other health impairments or specific learning disabilities.” See also 34 C.F.R. § 300.8, defining “Child with a disability.” . In Rowley, 458 U.S. at 188, 102 S.Ct. 3034, Justice Rehnquist, writing for the majority, pointed out the IDEA'S express definition of FAPE: “The term 'free appropriate education’ means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondaiy education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title. § 1401(18) (emphasis added). The opinion continues, \"Special education,” as referred to in this definition, means \"specially designed instruction,” at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” § 1401(16). \"Related services” are defined as “transportation, and such developmental, corrective and other supportive services as may be required to assist a handicapped child to benefit from special education.” § 1401(17). Id. Justice Rehnquist continued," }, { "docid": "15558311", "title": "", "text": "that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66, 68, 119 S.Ct. 992, 143 L.Ed.2d 154 (1999) (quoting 20 U.S.C. § 1400(C)) (internal quotation marks and citations omitted). Under the IDEA, federal money is available to “assist state and local agencies in educating handicapped children,” provided that the recipients of those funds comply with various provisions of the Act. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); 34 C.F.R. §§ 100.7, 104.61, (providing for federal monitoring of state and local compliance with the IDEA). Specifically, the IDEA provides for the creation of an IEP for each child as part of the child’s FAPE. 20 U.S.C. § 1414(d). The IEP is collaboratively developed among parents of the child, educators, and other specialists. 20 U.S.C. § 1414(d)(1)(B); Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (noting that Congress “envision[ed] the IEP as the centerpiece of the statute’s education delivery system for disabled children”). Recognizing that “educational policy and practice are traditional State and local functions,” J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 65 (2d Cir.2000), Congress left “implementation responsibilities” to the various state educational service agencies. Id. Because the “individualized education program team,” composed of parents and education professionals, 20 U.S.C. § 1414(d)(1)(B), cannot always agree on an appropriate IEP for the child, states are required to develop procedural safeguards to “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.” Honig, 484 U.S. at 311— 12, 108 S.Ct. 592. In New York, parents who object to a proposed IEP may request an “impartial due process hearing” before a hearing officer. N.Y. Educ. Law § 4404(1). Subsequent to such a hearing, any aggrieved party may then appeal the decision of the hearing officer" }, { "docid": "19595733", "title": "", "text": "in this case: the IDEA, under which the plaintiffs' administrative claim was adjudicated, and the ADA, under which the claim relevant to this appeal arises. A. The purpose of the IDEA is \"to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.\" 20 U.S.C. § 1400(d)(1)(A). A free appropriate public education, commonly referred to as a FAPE, is defined to include \"special education and related services that ... are provided in conformity with [a student's] individualized education program.\" Id. § 1401(9)(D). \"Special education\" is further defined as \"specially designed instruction ... to meet the unique needs of a child with a disability.\" Id. § 1401(29). \"Related services\" include supportive services, such as audiology and interpreting services, \"as may be required to assist a child with a disability to benefit from special education.\" Id. § 1401(26)(A). \"Supplementary aids and services\" can also be included in a student's individualized education program (\"IEP\"), see id. § 1414(d)(1)(A)(i)(IV), and are defined as \"aids, services, and other supports that are provided in regular education classes ... to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate,\" id. § 1401(33). If parents are concerned that their child is not receiving a FAPE, they can file a complaint with the local educational agency. See id. § 1415(b)(6)(A). The agency then has the opportunity to resolve the complaint at a preliminary meeting with the parents and the relevant members of the IEP team. See id. § 1415(f)(1)(B)(i). If that meeting fails to resolve the complaint \"to the satisfaction of the parents\" within a certain time period, id. § 1415(f)(1)(B)(ii), the parents are entitled to have the issue decided in an impartial due process hearing, see id. § 1415(f)(1)(A). There are two types of arguments available to the parents at a due process hearing, both of which center on the denial of a FAPE. They can argue that their child is being denied a FAPE substantively, on the grounds that his or her IEP" }, { "docid": "699366", "title": "", "text": "the ALJ’s findings. Sch. Bd. of Collier County, Fla. v. K.C., 285 F.3d 977, 983 (11th Cir.2002); Walker County Sch. Dist., 203 F.3d at 1297-98. The Court must consider the administrative findings of fact, but is free to accept or reject them. Walker County Sch. Dist., 203 F.3d at 1297-98. Stated simply, the role of the Court is to “review the administrative determinations contemplated by the Act.” Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853, 857 (11th Cir.1988) (quotations omitted). Discussion The purpose of the IDEA is to (1) ensure that all children with disabilities have a FAPE that emphasizes special education services designed to meet their unique needs and prepare them for further education, employment, and independent living; (2) protect the rights of disabled children and the parents of those children; and (3) assist states and other agencies with providing education for disabled children. 20 U.S.C. § 1400(d)(1). The IDEA guarantees disabled students a FAPE. Loren F., 349 F.3d at 1311. A FAPE is defined as special education and related services that “(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d).” 20 U.S.C. § 1401(9). To provide a FAPE, a school formulates an IEP during a meeting between the student’s parents and school officials. 20 U.S.C. §§ 1414(d)(l)(A)-(B). An IEP is a written statement for each disabled child that includes a statement of the child’s present levels of academic achievement and functional performance, a statement of measurable annual goals, a description of how the child’s progress toward meeting annual goals will be measured, a statement of the special education and related services to be provided to the child, and a statement of the program modifications or supports for school personnel that will be provided for the child. 20 U.S.C. § 1414(d)(1)(A). The IEP team consisting of the parents of the child, school" }, { "docid": "2183997", "title": "", "text": "for summary judgment. Cross-Motions for Summary Judgment A. The Individuals with Disabilities Education Act The IDEA was passed to provide educational opportunity for handicapped children when Congressional fact finding determined that many children with disabilities were either being excluded from the classroom or misplaced so that their education had no meaning. Rowley, 458 U.S. at 191, 102 S.Ct. at 3043 (citing H.R. Rep., at 2). The Act’s stated purpose is to: assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the right of children with disabilities and their parents or guardians are protected, ... and to assess and assure the effectiveness of efforts to educate children with disabilities. 20 U.S.C. § 1400(c); see Rowley, 458 U.S. at 179-84, 102 S.Ct. at 3037-39. The Act gives disabled students a substantive right to public education and conditions federal assistance upon a State’s compliance with the substantive and procedural goals of the Act. Honig v. Doe, 484 U.S. at 310, 108 S.Ct. at 597; Robert D. v. Sobel, 688 F.Supp. 861, 862 (S.D.N.Y.1988). The “free appropriate public education” required by the IDEA must be tailored to each child’s unique needs and take place in the least restrictive environment suitable for the child. 20 U.S.C. §§ 1400(c), 1412(5)(B). Free appropriate education requires “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203, 102 S.Ct. at 3049. To develop the proper program for each eligible child, the IDEA mandates an individualized education program, or IEP, for each eligible child. The IEP, prepared at meetings between the school district, the child’s teacher, and the child’s parents or guardians, defines the child’s present educational performance, establishes annual and short-terms objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. 20 U.S.C. § 1401(19); see Heldman v. Sobol, 962 F.2d 148, 151 (2d Cir.1992). The IDEA requires that the IEP be" }, { "docid": "8293204", "title": "", "text": "BACKGROUND A. Individuals with Disabilities Education Act The IDEA, 20 U.S.C. §§ 1400 et seq., “is a spending statute that imposes obligations on the states to provide certain benefits in exchange for federal funds.” Ellenberg v. N.M. Military Inst., 478 F.3d 1262, 1274 (10th Cir.2007). One of its core purposes is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A). The primary tool in assuring that a free, appropriate public education (“FAPE”) is provided to all eligible children with disabilities is the requirement that the state create an individualized education plan (\"IEP\") for each disabled child. Ass’n for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1043 (10th Cir.1993); see 20 U.S.C. § 1412(a)(4) (instituting IEPs). “The IEP is a written statement that sets forth the child’s present performance level, goals and objectives, specific services that will enable the child to meet those goals, and evaluation criteria and procedures to determine whether the child has met the goals.” Romer, 992 F.2d at 1043. IEPs must be reviewed at least annually and revised as appropriate. 20 U.S.C. § 1414(d)(4). For the special education and related services provided to a student to constitute a FAPE, they must be “provided in conformity with the [IEP].” Id. § 1401(8)(D). In order to support Congress’s goal to “mainstream” disabled children, the IDEA provides that such students must be educated “[t]o the maximum extent appropriate ... with children who are not disabled” in a “regular educational environment.” 20 U.S.C. § 1412(a)(5)(A) (detailing the meaning of the statutory right to the “least restrictive environment”). Disabled students may only be removed from the regular classroom setting “when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Id.; see Ellenberg, 478 F.3d at 1268. When parents believe their child is not being provided a FAPE in the least restrictive environment, they are given “an" }, { "docid": "5425269", "title": "", "text": "needs of a child with a disability,” and includes instruction in the classroom, home, physical education, and other settings. 20 U.S.C. § 1401(29)(A) & (B). “Related services” include “transportation, and such developmental, corrective, and other supportive services including speech- language pathology and audiology services ... as may be required to assist .a child with a disability to benefit from special education ....” 20 U.S.C. § 1401(26)(A) (internal parentheses omitted). The IDEA achieves its goals by guaranteeing students with disabilities a Free and Appropriate Public Education (“FAPE”). Loren F. v. Atlanta Independent Sch. Sys., 349 F.3d 1309, 1311 (11th Cir.2003); Sch. Bd. of Collier County v. K.C., 285 F.3d 977, 979 (11th Cir.2002); see 20 U.S.C. § 1400(d)(1)(A) (stating that a principal purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs”). In turn, a FAPE is defined as special education services that: (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d).... 20 U.S.C. § 1401(9). Furthermore, “[t]he services and placement needed by each child with a disability to receive a FAPE must be based on the child’s unique needs and not on the child’s disability.” 34 C.F.R. § 300.300(a)(3)(ii). 2. Individualized Education Plan To provide a child with a FAPE, the School Board formulates an IEP “during a meeting between the student’s parents and school officials.” Loren F., 349 F.3d at 1312 (citing 20 U.S.C. § 1414(d)(l)(A)-(B) and N.L. v. Knox County Sch., 315 F.3d 688, 689 (6th Cir.2003)). More specifically, a parent is required to notify a school board or other public agency that it wishes to place a child in special édücation services. The parent then consents to have the child evalúáted to determine whether the child is “a" }, { "docid": "22445191", "title": "", "text": "CANBY, Circuit Judge. This appeal involves a dispute over the appropriate educational placement for Bion Jackson under the Individuals with Disabili- 20 U.S.C. ties Education Act (“IDEA”), § 1400 et seq. The district court granted summary judgment in favor of the Ojai Unified School District (“School District”) and the Ventura County Superintendent of Schools (“Superintendent”) (collectively “the school officials”). In so doing, the district court overruled an administrative' hearing officer’s decision that required Bion to be placed in a private school at public expense. We reverse and remand. I. STATUTORY FRAMEWORK Because this appeal requires us to interpret a complex web of federal and state statutes and regulations, a brief summary of the legal framework is necessary. The IDEA provides federal 'funds to assist state and local agencies in educating children with disabilities, but conditions such funding on compliance with certain goals and procedures. 20 U.S.C.A. § 1412 .(West 1990 & Supp.1993); Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179-80, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982), (describing evolution and major provisions of the act). The IDEA’S primary purpose is “to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs[.]” 20 U.S.C.A. § 1400(c) (West Supp.1993). This purpose is achieved through the development of an .individualized education program (“IEP”) for each child with a disability. 20 U.S.C.A. § 1401(a)(18)(D) (West 1990). The IEP is crafted annually by a team that includes a representative of the local educational agency, the child’s teacher and parents, and, in appropriate cases, the child. 20 U.S.C.A. § 1414(a)(5) (West Supp.1993); 34 C.F.R. § 300.343(d) (1992). The IEP document must contain: information regarding the child’s present levels of performance; a statement of annual goals and short-term instructional objectives; a statement of the specific educational services to be provided and the extent to which the child can- participate in regular educational' programs; and objective criteria for measuring the student’s progress. 20 U.S.C.A. § 1401(a)(20) (West Supp.1993); 34 C.F.R. §" }, { "docid": "22870012", "title": "", "text": "reimburse parents for various expenses. See generally §§ 1412(a)(10), 1414, 1415. Although our discussion of these four areas does not identify all the illustrative provisions, we do take particular note of certain terms that mandate or otherwise describe parental involvement. IDEA requires school districts to develop an IEP for each child with a disability, see §§ 1412(a)(4), 1414(d), with parents playing “a significant role” in this process, Schaffer v. Weast, 546 U. S. 49, 53 (2005). Parents serve as members of the team that develops the IEP. § 1414(d)(1)(B). The “concerns” parents have “for enhancing the education of their child” must be considered by the team. § 1414(d)(3)(A)(ii). IDEA accords parents additional protections that apply throughout the IEP process. See, e. g., § 1414(d)(4)(A) (requiring the IEP Team to revise the IEP when appropriate to address certain information provided by the parents); § 1414(e) (requiring States to “ensure that the parents of [a child with a disability] are members of any group that makes decisions on the educational placement of their child”). The statute also sets up general procedural safeguards that protect the informed involvement of parents in the development of an education for their child. See, e. g., § 1415(a) (requiring States to “establish and maintain procedures ... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education”); § 1415(b)(1) (mandating that States provide an opportunity for parents to examine all relevant records). See generally §§1414, 1415. A central purpose of the parental protections is to facilitate the provision of a “‘free appropriate public education,’” §1401(9), which must be made available to the child “in conformity with the [IEP],” §1401(9)(D). The Act defines a “free appropriate public education” pursuant to an IEP to be an educational instruction “specially designed ... to meet the unique needs of a child with a disability,” § 1401(29), coupled with any additional “ ‘related services’ ” that are “required to assist a child with a disability to benefit from [that instruction],” § 1401(26)(A). See also § 1401(9). The education must," }, { "docid": "9462797", "title": "", "text": "for summary adjudication. II. Statutory Background The IDEA is “an ambitious federal effort” to “assist state[s] ... in educating [disabled] children.” Board of Educ. of Hendrick Hudson Cent Sch. Dist. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). To qualify for federal funds under the IDEA, a state must implement a plan which “assure[s] that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs....” 20 U.S.C.A. § 1400(c) (West Supp.1998). A “free and appropriate education” is one that is tailored to the unique needs of a particular child such that the child “benefit[s] educationally from [the] instruction.” Rowley, 458 U.S. at 203, 102 S.Ct. 3034. Local education agencies (“LEA”) ensure tailored educational services by generating an individualized education program (“IEP”) for each child in need of special education. 20 U.S.C. § 1414(a)(5) (1988 and Supp.1998). An IEP, prepared at a meeting between the child’s teacher, a school representative qualified in special education, and the child’s parents, is a written statement that includes the child’s present educational performance, lists annual goals and short-term instructional objectives, and describes the specific educational services that the child will receive to achieve those goals. 20 U.S.C.A. § 1401(a)(20) (West Supp.1998). Congress included a panoply of procedural safeguards to give parents an opportunity to have “meaningful” input in decisions about their child’s education. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); see 20 U.S.C.A. § 1415(a) (West Supp.1998) (“Any ... educational agency ... which receives assistance ... shall establish ... procedures ... to assure that children with disabilities and their parents ... are guaranteed procedural safeguards with respect to the provision of free appropriate public education.... ”). Through these procedures, parents can, for example, present a complaint regarding “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate education to such child.” 20 U.S.C. § 1415(b)(1)(E) (1988). If parents choose, their objections and concerns may be heard" }, { "docid": "13249417", "title": "", "text": "children and their parents or guardians are protected.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 129 S.Ct. 2484, 2491, 174 L.Ed.2d 168 (2009) (second and third alterations in original) (footnote omitted) (citation omitted) (internal quotation marks omitted). The cornerstone of the Act is the condition that schools provide children with a “free appropriate public education.” See 20 U.S.C. §§ 1412(a)(1)(A), 1413(a)(1). A free appropriate public education must be tailored to each child’s needs pursuant to an “individualized education program” (“IEP”) designed by the child’s “IEP Team.” Id. §§ 1401(14), 1414(d). The Act defines “free appropriate public education” to mean “special education and related services.” Id. § 1401(9). However, in Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the Supreme Court refused to interpret the phrase to require schools to “maximize the potential of handicapped children ‘commensurate with the opportunity provided to other children,’ ” id. at 189-90, 102 S.Ct. 3034 (citation omitted). Instead, the Court interpreted the Act to require schools to provide a “ ‘basic floor of opportunity.’ ” Id. at 200, 102 S.Ct. 3034 (quoting H.R. Rep. No. 94-332, at 14 (1975)). A school satisfies the requirement of a free appropriate public education “by providing personalized instruction with sufficient support services to permit [a] child to benefit educationally from that instruction.” Id. at 203, 102 S.Ct. 3034. The “special education” component of “free appropriate public education” is not directly at issue in this case. The “related services” component, however, is of critical importance. For each child with a disability, the IEP Team is responsible for determining which related services must be made available by the school district. See 20 U.S.C. § 1414(d)(1)(A)(i)(IV). All such services must be specified in a child’s written IEP. Id. “Related services” under the IDEA include, inter alia, “transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child" }, { "docid": "23459288", "title": "", "text": "for the judiciary, and unworkably vague. Given the extensive process and expertise involved in crafting an IEP, the failure to implement any portion of the program to which the school has assented is necessarily material. Therefore, I respectfully dissent. II. Under the IDEA, once a school district identifies or assesses a student as learning disabled, it must convene an IEP Team to determine the special needs of the child. 20 U.S.C. § 1414. The IEP Team consists of the child, the child’s parents, at least one regular education teacher (if mainstream participation is contemplated), at least one special education teacher, a specially qualified representative of the school district, an individual who can interpret the instructional implications of evaluation results, and other individuals with expertise regarding the child’s needs and disability. § 1414(d)(1)(B). Once convened, this IEP Team meets as many times as necessary to draft an IEP for the student. § 1414(d). The IEP is the central document that guides a child’s special education. It details the child’s present levels of academic achievement, his or her goals, the criteria for measuring progress, and the services and accommodations that the school has committed to providing. § 1414(d)(1)(A)®. An IEP is the product of an extensive process and represents the reasoned conclusion of the IEP Team that the specific measures it requires are necessary for the student to receive a free appropriate public education (“FAPE”). The school is required to implement the IEP as part of the IDEA’S broad, overarching purpose “to ensure that all children with disabilities have available to them a free appropriate public education.” § 1400(d)(1)(A). A school district’s failure to comply with the specific measures in an IEP to which it has assented is, by definition, a denial of FAPE, and, hence, a violation of the IDEA. See § 1401(9)(D) (“The term ‘free appropriate public education’ means special education and related services that ... are provided in conformity with the individualized education program.”) (emphasis added); M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 642 (9th Cir.2005) (quoting statutory definition of FAPE); 34 C.F.R. § 300.323(c)(2) (“Each public" }, { "docid": "8597260", "title": "", "text": "S.Ct. 3034, 73 L.Ed.2d 690 (1982). In particular, the IDEA aims to address concerns about the “apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special education classes.” N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104, 1115 (9th Cir.2010) (citing Sch. Comm. of the Town of Burlington v. Mass. Dep’t of Educ., 471 U.S. 359, 373, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)). On the other hand, the IDEA aims to ensure that handicapped children are provided public education appropriate for their needs, and are not “left to fend for themselves in classrooms designed for education of their non[-]handicapped peers.” Rowley, 458 U.S. at 191, 102 S.Ct. 3034. A free and appropriate public education (FAPE) is defined as “special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate pre-school, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.” 20 U.S.C. § 1401(9). In order to provide children with a FAPE, schools and parents work together to develop an individualized education program (IEP). Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). An IEP is defined as a “written statement for each child with a disability that is developed, reviewed, and revised in accordance with section 1414(d) of this title.” 20 U.S.C. § 1401(14). The IEP is, in effect, a “comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs.” Burlington, 471 U.S. at 368, 105 S.Ct. 1996. A state must comply both procedurally and substantively with the IDEA. Amanda J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 881 (9th Cir.2001). While the IDEA does not define the particular substantive level of education that must be provided to a child, the state must provide an education that is “reasonably calculated" }, { "docid": "4396628", "title": "", "text": "novo the district court’s order denying summary judgment, applying the same standards that governed the district court’s decision. LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 834-35 (11th Cir.1998). IV.DISCUSSION The IDEA was enacted, in part, “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A). Consistent with this purpose, the IDEA authorizes federal financial assistance to States that agree to provide disabled children with special education and related services. See 20 U.S.C. § 1411. The term “related services” includes “transportation, and such developmental, corrective, and other supportive services (including ... medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education.” 20 U.S.C. § 1401(22). In other words, related services are those “that enable a disabled child to remain in school during the day [to] provide the student with the meaningful access to education that Congress envisioned.” Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66, 73, 119 S.Ct. 992, 997, 143 L.Ed.2d 154 (1999) (citation and internal quotation marks omitted). Under the IDEA, schools evaluate each child with a disability to develop and implement an IEP for each child, specifying educational and developmental goals for the child. See generally 20 U.S.C. § 1414. An IEP team consists of several people, including the child’s regular education teacher, a special education teacher, a local education agency official, the child’s parents, and when appropriate, the child. 20 U.S.C. § 1414(d)(1)(B). The IEP team develops each child’s IEP, which must include a statement of the child’s present levels of educational performance; a statement of annual goals, including long and short-term objectives; a statement of the specific special education and related services to be provided to the child; a statement of the transition services needed by the child, where applicable; the projected date on which the services will begin and their anticipated duration; and objective criteria and" }, { "docid": "22064685", "title": "", "text": "must be reasonably calculated to confer some educational benefit on a disabled child. Id. at 207, 102 S.Ct. 3034. Such an educational benefit must be provided to a disabled child in the least restrictive and appropriate environment, with the child participating, to the extent possible, in the same activities as non-disabled children. 20 U.S.C. § 1412(a)(5)(A). The IDEA does not, however, require a school district to provide a disabled child with the best possible education. Rowley, 458 U.S. at 192, 102 S.Ct. 3034. And once a FAPE is offered, the school district need not offer additional educational services. Matthews v. Davis, 742 F.2d 825, 830 (4th Cir.1984). That is, while a state “must provide specialized instruction and related services ‘sufficient to confer some educational benefit upon the handicapped child,’ ... the Act does not require the ‘furnishing of every special service necessary to maximize each handicapped child’s potential.’ ” Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996, 1001 (4th Cir.1997) (quoting Rowley, 458 U.S. at 199-200, 102 S.Ct. 3034). A school district is required by the IDEA to provide an IEP for each disabled child. An appropriate IEP must contain statements concerning a disabled child’s level of functioning, set forth measurable annual achievement goals, describe the services to be provided, and establish objective criteria for evaluating the child’s progress. 20 U.S.C. § 1414(d)(1)(A). The IDEA establishes a series of elaborate procedural safeguards “designed to ensure that the parents or guardian of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to these decisions.” Gadsby v. Grasmick, 109 F.3d 940, 956 (4th Cir.1997). The IEP must therefore be prepared by an IEP Team, which consists of a representative of the school district, the child’s teacher, the parents or guardian and, where appropriate, the child herself. 20 U.S.C. § 1414(d)(1)(B). The IDEA requires that the parents or guardian of a disabled child be notified by the school district of any proposed change to their child’s IEP. It also requires that the parents or guardian be permitted to participate in discussions" }, { "docid": "22818281", "title": "", "text": "result in individualized consideration of and instruction for each child.” Rowley, 458 U.S. at 189, 102 S.Ct. 3034. To accomplish this goal, Congress provides federal funding to states that have “in effect a policy that assures all children ... the right to a free appropriate public education.” 20 U.S.C. § 1412(1). A FAPE is defined by the IDEA as special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title. 20 U.S.C. § 1401(a)(18). For purposes of the IDEA, “special education” means “specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including — (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings.... ” 20 U.S.C. § 1401(a)(16). Thus, a FAPE must be “tailored to the unique needs of the handicapped child.” Rowley, 458 U.S. at 181, 102 S.Ct. 3034. Although the instruction provided need not be the “absolutely best or ‘potential maximizing,’ ” Gregory K., 811 F.2d at 1314 (citation omitted), “Congress did not intend that a school system could discharge its duty under the [IDEA] by providing a program that produces some minimal academic advancement, no matter how trivial,” Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir.1985) (holding that a child was denied a FAPE when the school failed to inform his parents of their procedural rights, including the right to an independent evaluation, and failed to develop an IEP which met the Act’s requirements). Our inquiry in determining whether Amanda received a free appropriate public education is twofold. We must determine first whether “the State complied with the procedures set forth in the Act” and, second, whether “the individualized educational program developed through the Act’s procedures [was] reasonably calculated to enable the" } ]

[ { "docid": "1850016", "title": "", "text": "MEMORANDUM OPINION DOUGLAS O. TICE, Jr., Chief Judge. Hearing was held February 17, 1999, on objection by Educational Credit Management Corporation to confirmation of debt- or’s second modified Chapter 13 plan. Debtor’s first modified plan was confirmed by order entered October 21,1998. ECMA’s objection was filed after the 30 day time limit for objecting to confirmation. However, it is this court’s practice to consider the confirmability of a chapter 13 plan on the merits of the plan whether or not an objection is timely, and the court therefore considers the objection. ECMA holds a claim for an educational loan dis-chargeable only on the basis of undue hardship pursuant to 11 U.S.C. § 523(a)(8). It objects to the plan provision which provides for the discharge of the education loan as an undue hardship. The court will deny confirmation of debtor’s second modified plan. Facts Debtor filed this chapter 13 case on July 9, 1998. With debtor’s consent the court denied confirmation of debtor’s first plan. The first modified plan was confirmed without objection on October 21, 1998. The debtor filed a second modified plan on October 22, 1998. ECMA filed an untimely objection to confirmation of the second modified plan on December 4, 1998. Both the first modified plan, which was confirmed, and the second modified plan to which the creditor ECMA objects contain the following provision: The debtor hereby moves the Court for a Hardship Discharge Pursuant to 11 U.S.C. § 523(a)(8)(B). The Debtor asserts that excepting such debt from discharge under 11 U.S.C. § 523(a)(8) will impose an undue [sic] on the debtor and the debtor’s dependants. Discussion And Conclusions The court first notes that the ruling to be made here is a narrow one, i.e., whether the debtor’s chapter 13 plan should be confirmed when it contains a provision that a nondischargeable debt will be discharged. However, a broader issue is raised due to the previous confirmation, which the court will also address. Debtor asserts that the creditor’s failure to timely object to confirmation of the second modified plan precludes denial of confirmation. It is debtor’s position that" } ]

[ { "docid": "1937560", "title": "", "text": "313 (Bankr.D.Vt.2003). Sneaking a provision in a plan, hoping no one will notice it, and then reaping the benefits of its inclusion violates the fundamental principles of due process and of fair play, and threatens the heart of our legal, adversarial system. Enforcement of the discharge here would be tantamount to condoning a surreptitious strategy that should, in fact, be discouraged with vigor. C. The Creditor Has No Obligation to Object to a Discharge-by-Declaration Provision in a Chapter 13 Plan ECMC’s failure to file a timely objection to the Plan is of no consequence since the dischargeability provision was not confirmable as a matter of law. An order of confirmation cannot confirm provisions in a plan which exceed the legal boundaries of the plan and conflict with the mandates of the Bankruptcy Code. See §§ 1322 and 1328. A creditor has the right to rely on the Bankruptcy Code and Rules and to expect to be accorded due process of law in accordance with the Bankruptcy Code and Rules, and the United States Constitution. The burden is on the debtor to proceed according to the mandates of the Bankruptcy Code and Rules, to include provisions in a plan only to the extent authorized by § 1322, and to file an adversary proceeding if he or she wishes relief under § 523(a)(8). See In re Conner, 242 B.R. 794, 799 (Bankr.N.H.1999); In re Mammel, 221 B.R. 238, 243 (Bankr.N.D.Iowa 1998); In re Ruehle, 296 B.R. 146, 157-58 (Bankr.N.D.Ohio 2003). The Debtor failed to provide the requisite notice to obtain discharge of his student loan debt. It would be an unjustifiable shifting of the burden of proof, and a gross miscarriage of justice, to require ECMC to object to the plan in order to protect its debt from discharge. D. The Question of Good Faith is Moot ECMC has questioned the Debtor’s good faith and presented proof which raised the specter of whether the Debtor committed a fraud in its treatment of ECMC, praying for relief pursuant to 11 U.S.C. § 1330. However, § 1330 permits revocation of an order of confirmation" }, { "docid": "1937536", "title": "", "text": "adversary proceeding to determine the dischargeability of his student loan. IV. The Parties’ Arguments ECMC, Sallie Mae’s successor-in-interest, asserts that it is entitled to a judgment declaring the discharge of its debt unenforceable on four distinct grounds. First, it alleges that this Court lacked the authority to confirm the Debtors’ Plan because the Plan does not comply with the requirements of the Bankruptcy Code and Rules in that it seeks to obtain relief from the student loan obligation without the filing of an adversary proceeding. Second, ECMC argues that the Debtors’ Plan was not proposed in good faith and, therefore, was not confirmable. Third, ECMC asserts that the Discharge Order is void to the extent that it purports to discharge the student loan debt by means other than an adversary proceeding. Finally, ECMC argues that the Plan fails to establish that excepting Whelton’s educational loan from discharge would impose an undue hardship on the Debtors, i.e., that the Brunner criteria has not been demonstrated; and that the Debtor’s failure to serve it with a summons and complaint deprived ECMC of essential due process. Therefore, ECMC asks the Court to vacate the Confirmation and Discharge Orders and to declare that the Debtor’s student loan has not been discharged. The Debtor counters that the requirements of due process have been met because ECMC (and/or its predecessor) was served with the Plan and notice of the confirmation hearing, and ECMC’s failure to attend the § 341 meeting and to object to the Plan constitutes a waiver of its right to object to any provision in the Plan at this time. Further, the Debtor argues that ECMC received and accepted payments under the Plan through July 7, 2000, the date of discharge, and that acceptance bars Plaintiffs claim under the doctrine of collateral estoppel. The Debt- or also asserts that since ECMC had notice of the Debtor’s filing of a bankruptcy case and plan, and had an opportunity to contest provisions in the Plan, but failed to do so, it is now barred by res judicata from challenging the provisions of the Plan. Thus," }, { "docid": "7879911", "title": "", "text": "unsecured claims, including the claims of Higher Education Assistance Foundation and UNIPAC-NEBHELP, which are government guaranteed education loans, shall be paid ten percent (10%) of each claim, and the balance of each claim shall be discharged. Pursuant to 11 U.S.C. § 523(a)(8), excepting the aforementioned education loans from discharge will impose an undue hardship on the debtor and the debtor’s dependents. Confirmation of debtor’s plan shall constitute a finding to that effect and that said debt is dischargeable. HEAF filed an untimely objection to the plan, which was denied for that reason. The plan, which included the above language, was ' subsequently confirmed. HEAF did not appeal the order of confirmation. HEAF ceased operations on December 31, 1993, during the course of Andersen’s bankruptcy, and transferred the majority of its bankruptcy loan portfolio, including Andersen’s promissory notes, to the United States Department of Education. Also during the course of Andersen’s bankruptcy, in May 1994, the Department of Education transferred title of these promissory notes to Educational Credit Management Corporation (ECMC), which operates as a non-profit educational loan guaranty agency under the Federal Family Education Loan Program (FFELP). Andersen completed all payments under the confirmed plan and was granted a discharge on December 22, 1994. ECMC reviewed Andersen’s account during the course of processing the discharge and determined that the second and third promissory notes had not reached default status before Andersen filed for bankruptcy. Pursuant to the FFELP, ECMC initiated repurchase proceedings for the second and third notes with UNIPAC-NEBHELP, and the repurchase was completed on March 10, 1995. UNIPAC-NE-BHELP took title to the second and third notes, and ECMC remained the guarantor of the repurchased notes. Because Andersen had defaulted on the first and fourth notes prior to filing for bankruptcy, ECMC initiated collection proceedings on those notes, and on January 9, 1995, ECMC sent Andersen a letter requesting payment of the first and fourth notes. Andersen’s counsel responded with a letter directed to ECMC on January 30 stating that the debt had been discharged. ECMC promptly replied and expressed its position that the debt was not discharged. ECMC" }, { "docid": "18052866", "title": "", "text": "finding that excepting the debtor’s educational loans from discharge will impose an undue hardship upon the debtors.” Id. at § III.7. On June 29, 1999, the Wheltons filed a First Amended Chapter 13 Plan that increased the dividend on all allowed unsecured claims from 3% to 5%, but left the declaration of undue hardship unchanged. See First Amended Chapter 13 Plan at § 1.4; § III.7. Neither the Plan nor the amended plan contains the name of creditor ECMC or its predecessor CSAC, nor does it identify the specific loan. The discharge language was contained in the seventh paragraph of a section of the Plan entitled “Other Provisions,” and did not stand out in any way from the otherwise standard provisions of the Plan. CSAC received notice of the Wheltons’ Chapter 13 Plan and a Notice of Meeting of Creditors by mail on or about June 7, 1999. The notice stated that objections to the Plan must be filed by June 24, 1999, and that a confirmation hearing was scheduled for June 29, 1999. CSAC assigned the consolidated loan to ECMC on June 22, 1999. Neither CSAC nor ECMC attended the creditors’ meeting or objected to the Plan. ECMC filed a proof of claim in the amount of $102,882.51 on June 29, 1999. The record does not reflect whether ECMC or CSAC received copies of the amended plan, but in any case ECMC could not have received a copy before the confirmation hearing on June 29, the same day the amended plan was filed. The Bankruptcy Court (Conrad, J.) confirmed the Plan on June 30, 1999 in a standard order. The findings stated that the plan complied with all applicable provi sions of the Bankruptcy Code, had been proposed in good faith, and was not forbidden by law. (Findings & Order filed July 8,1999.) The order confirmed the Amended Plan containing the discharge by declaration language. ECMC did not appeal the confirmation order. Approximately one year after the Plan was confirmed, the Wheltons borrowed money from a family member, paid off the full amount due under the Plan and received" }, { "docid": "4159645", "title": "", "text": "be paid ten percent (10%) of each claim, and the balance of each claim shall be discharged. Pursuant to 11 U.S.C. § 523(a)(8), excepting the aforementioned education loans from discharge will impose an undue hardship on the debtor and the debtor’s dependents. Confirmation of debtor’s plan shall constitute a finding to that effect and that said debt is dis-chargeable. In re Andersen, 179 F.3d at 1254. With the exception of this “finding” in the debt- or’s plan, the Andersen case is nearly identical to the instant case. The creditor holding the student loan promissory notes in Andersen, HEAF, filed an objection to the plan but it was denied as untimely. The plan was subsequently confirmed. HEAF did not appeal the order of confirmation. Id. The student loan notes were later transferred from HEAF to ECMC. The debtor completed all payments under the plan and was granted a discharge pursuant to § 1328(a)(2). When ECMC subsequently tried to collect on two of the promissory notes, the debtor re-opened her bankruptcy case and filed a complaint to determine the dischargeability of the student loan debt. The Bankruptcy Court in Andersen ruled that the debt was not dischargeable because the debtor had not proven undue hardship in an adversary proceeding as required by the Bankruptcy Code. On appeal, however, the Tenth Circuit Bankruptcy Appellant Panel and a panel of the Tenth Circuit ruled otherwise. The Tenth Circuit noted that under.§ 1327(a), a final order confirming a chapter 13 plan “represents a binding determination of the rights and liabilities of the parties as ordained by the plan. Absent timely appeal, the confirmed plan is res judicata and its terms are not subject to collateral attack.” Id. at 1258. Thus, the order of confirmation was “res judicata as to the issue of hardship,” and even though the discharge was inconsistent with the Bankruptcy Code, “it is now too late” for ECMC to make the argument that the debt was non-discharge-able. Id. at 1259. The court noted that § 1327 serves the same purpose as the doctrine of res judicata, and said there must be finality" }, { "docid": "4159643", "title": "", "text": "Order of Discharge and Final Decree on January 6, 1999. The Discharge Order stated in part: “[D]ebtor is discharged for all debts, provided for by the plan except any debt: * * * (c) for a student loan or educational benefit overpayment as specified in 11 U.S.C. Section 523(a)(8) in any case in which discharge is granted prior to October 1, 1996.” No creditors objected to Ms. Poland’s discharge. No one appealed or sought other relief in connection with the Discharge Order. ECMC is now the holder of the student loan obligation through a series of assignments. Following Ms. Poland’s discharge, ECMC attempted to collect the loan. Ms. Poland reopened her bankruptcy case and commenced this proceeding seeking the Bankruptcy Court’s determination that the language of her plan and of the Discharge Order discharged the student loan. ECMC timely answered the complaint and alleged that the student loan had not been discharged and is non-dischargeable. The Bankruptcy Court, relying on In re Andersen, found that although the plan should not have been confirmed with the provision discharging the student loans, that provision and the discharge order were nonetheless binding on the parties under principles of finality and res judicata and the student loan was discharged. II. Tenth Circuit ruling in In re Andersen. The Bankruptcy Code generally provides that a discharge does not discharge debt arising from a government-guaranteed or insured educational loan “unless excepting such debt from discharge ... will impose an undue hardship on the debt- or and the debtor’s dependents.” In re Andersen, 179 F.3d 1253, 1255 (10th Cir.1999) (citing 11 U.S.C. § 523(a)(8)). This policy is reflected in Chapter 13 of the Code, which states (insofar as relevant here) that a discharge granted under § 1328 discharges all debts provided for in the debtor’s plan except for certain kinds of debt specified in § 523(a), which includes the foregoing student loan hardship provision. In In re Andersen, the debtor’s Chapter 13 plan included the following language: All timely filed and allowed unsecured claims, including the claims of [HEAF] ..., which are government guaranteed education loans, shall" }, { "docid": "7879932", "title": "", "text": "that “we are not faced with a collateral attack on the confirmation order, but a direct attack on the confirmation order entered in a fashion which exceeds the bankruptcy court’s authority.\" We disagree. HEAF failed to appeal the confirmation order within the time limits of Bankruptcy Rules 8001 and 8002. Hence, ECMC's present attack is a collateral attack on the confirmation order. See Pardee, 218 B.R. at 926 (because a confirmed plan binds the creditors and debtor under § 1327(a), a creditor cannot, after the order of confirmation is final and after the debtor fully performed on the Plan, collaterally attack the confirmation order by seeking to collect in direct violation of the terms of the Plan). . Section 1327(a) of the Code provides that the \"provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.” ECMC contends that this provision only binds the creditor for the duration of the plan, arguing that a- nondischargeable debt is not governed by § 1327 after discharge in bankruptcy. We disagree with ECMC's position here. \"The res judicata ef-feet of confirmation may be eliminated only if confirmation is revoked, or if the case is later dismissed or converted to another chapter.” 5 Collier on Bankruptcy ¶ 1327.01[1] (15th ed.1996). As we explain below, this is not a case in which a debt that was nondis-chargeable throughout the course of bankruptcy suddenly became dischargeable at the conclusion of the proceedings. Rather, the debt became dischargeable at the point of confirmation. . As the BAP said, \"[h]ad HEAF timely objected, the issue now before the Court could have been dealt with and determined.” Andersen, 215 B.R. at 795. . As the Bankruptcy Court noted, prior to 1990, student loan obligations were dis-chargeable in chapter 13 after completion of plan payments. In 1990, Congress amended § 1328(a)(2), adding § 523(a)(8) as an exception to discharge. Student Loan Default Prevention Initiative Act of 1990, Pub.L. 101—" }, { "docid": "15572947", "title": "", "text": "include the following language, (1) School loans that are non-discharge-able in chapter 7 cases — to be treated as general unsecured creditors and as follows: 10% of all allowed general, unsecured creditors are to be paid through plan, after payment of allowed secured creditors. Upon completion of planned payment of said 10% of allowed general, unsecured creditors, all remaining unsecured debts, including school loans that are otherwise non-dischargeable in chapter 7 cases, shall be discharged. Said completion of the plan shall result in a finding that it would be an undue hardship for the Debtor to have to pay any additional monies to the special class of school loans not otherwise dischargea-ble. Id. at 58. Such language would constitute a discharge-by-declaration upon confirmation. Again, ECMC received notice of the amendment, but failed to object. The bankruptcy court granted the amendment on May 25, 1999. Four years later, Mers-mann completed the plan and the bankruptcy court discharged Mersmann’s existing debts pursuant to the plan on June 2, 2003. Despite the plan’s terms, the discharge order specially excepted from discharge “a student loan or educational benefit overpayment as specified in 11 U.S.C. Section 523(a)(8) in any case in which discharge is granted.” Id. at 76. Following her discharge, ECMC attempted to collect the remaining balance on Mersmann’s student loan debt. She asserted that her student loan had been discharged through her plan under 11 U.S.C. § 1327. On September 15, 2003, ECMC filed a Rule 60b(4) and (6) of the Federal Rules of Civil Procedure motion to vacate the bankruptcy court’s discharge order claiming that it violated due process because the hardship determination was obtained without adequate notice and an adversary proceeding. Mersmann opposed the motion and cross-moved to amend the discharge order under Rule 60(a) to recognize the discharge of her student loans. In a single opinion consolidating four similarly-situated debtors, the bankruptcy court found for Mersmann, denied the 60(b) motions, and amended the discharge order to excise the language excluding student loans. See Educ. Credit Mgmt. Corp. v. Boyer (In re Boyer), 305 B.R. 42, 50 (Bankr.D.Kan.2004). ECMC appealed the" }, { "docid": "12736244", "title": "", "text": "each of such claims shall be discharged. Pursuant to 11 U.S.C. § 523(a)(8), excepting the aforementioned education loans from discharge will impose an undue hardship on the debtor and the debtor’s dependent children [the Repps had no children]. Confirmation of the debtor’s plan shall constitute a finding by this court to that effect and that said debt is dischargea-ble. One of the debts in the chapter 13 case was based on a $2,625.00 student loan that Aaron Repp had taken out in 1995, at age 21, the principal of which was paid down to $1,983.54. Northwest Education Loan Association (“NELA”) owned and serviced the loan until December 7, 1999, when it was assigned to Educational Credit Management Corporation (“ECMC”). ECMC filed a proof of claim on December 21, 1999, for $2,465.39, including unpaid interest, costs, and fees. A copy of the plan was mailed to NELA at the postal lockbox’ where payments were sent. The notice that accompanied the plan stated that any objection to plan confirmation must be filed and served “no later than twenty-one (21) days after the conclusion of the meeting of creditors or within twenty-five (25) days from the date of service of the plan, whichever is later.” A discharge under 11 U.S.C. § 1328(a) was entered on November 27, 2002, after plan payments were completed. In September 2002, the Repps filed a two-count adversary proceeding against NELA and ECMC. Count one sought a declaratory judgment that the binding effect of the plan term, pursuant to 11 U.S.C. § 1327 and Pardee, discharged the student loan debt. Count two alleged a § 523(a)(8) dischargeability cause of action to discharge the student loan as an undue hardship. ECMC answered and counterclaimed for a declaratory judgment “that the portion of the confirmation order providing that the balance of the debtors’ educational loans shall be discharged upon plan completion is null and void, as no adversary proceeding was initiated prior to that provision, and the provisions violates the Fifth Amendment due process rights of defendant ECMC under U.S.C.A. Const. Amend. 5.” On cross-motions for summary judgment, the bankruptcy court" }, { "docid": "4159642", "title": "", "text": "the U.S. Department of Education, the claim shall be deemed discharged in its entirety upon completion of the Plan. The Chapter Thirteen [13] Trustee shall make no distribution to the U.S. Department of Education unless by further Order of the Court. The Bankruptcy Court did not receive any objections to Ms. Poland’s Chapter 13 plan and DOE neither filed a timely proof of claim nor objected to the proposed plan. Ms. Poland’s plan was confirmed on April 20, 1994. The DOE did not appeal the confirmation order. On May 5, 1994, one day after the claim bar date, DOE filed a claim (Claim # 10). On May 9, 1994, DOE filed a notice of assignment of Claim # 10 to TGA, Inc. This is shown on the claims register as Claim # 11. Ms. Poland objected to Claim # 11. The Bankruptcy Court entered an order on December 27, 1994, sustaining Ms. Poland’s objection and disallowing TGA’s claim in its entirety. Ms. Poland successfully completed her Chapter 13 plan and the Bankruptcy Court entered an Order of Discharge and Final Decree on January 6, 1999. The Discharge Order stated in part: “[D]ebtor is discharged for all debts, provided for by the plan except any debt: * * * (c) for a student loan or educational benefit overpayment as specified in 11 U.S.C. Section 523(a)(8) in any case in which discharge is granted prior to October 1, 1996.” No creditors objected to Ms. Poland’s discharge. No one appealed or sought other relief in connection with the Discharge Order. ECMC is now the holder of the student loan obligation through a series of assignments. Following Ms. Poland’s discharge, ECMC attempted to collect the loan. Ms. Poland reopened her bankruptcy case and commenced this proceeding seeking the Bankruptcy Court’s determination that the language of her plan and of the Discharge Order discharged the student loan. ECMC timely answered the complaint and alleged that the student loan had not been discharged and is non-dischargeable. The Bankruptcy Court, relying on In re Andersen, found that although the plan should not have been confirmed with the" }, { "docid": "1937561", "title": "", "text": "burden is on the debtor to proceed according to the mandates of the Bankruptcy Code and Rules, to include provisions in a plan only to the extent authorized by § 1322, and to file an adversary proceeding if he or she wishes relief under § 523(a)(8). See In re Conner, 242 B.R. 794, 799 (Bankr.N.H.1999); In re Mammel, 221 B.R. 238, 243 (Bankr.N.D.Iowa 1998); In re Ruehle, 296 B.R. 146, 157-58 (Bankr.N.D.Ohio 2003). The Debtor failed to provide the requisite notice to obtain discharge of his student loan debt. It would be an unjustifiable shifting of the burden of proof, and a gross miscarriage of justice, to require ECMC to object to the plan in order to protect its debt from discharge. D. The Question of Good Faith is Moot ECMC has questioned the Debtor’s good faith and presented proof which raised the specter of whether the Debtor committed a fraud in its treatment of ECMC, praying for relief pursuant to 11 U.S.C. § 1330. However, § 1330 permits revocation of an order of confirmation only if a party in interest files a request for revocation of the confirmation order within 180 days after entry of that order and a court finds the debtor procured the confirmation of the plan by fraud. Since ECMC did not file its request within the required 180-day time frame, it is precluded from seeking relief under § 1330. Therefore, the Court reaches no determination as to the Debtor’s good faith or the use of fraud in procuring the Confirmation Order. VI. Conclusion A confirmation order can confirm only those provisions which seek relief available under a plan. Since the subject discharge-by-declaration provision in the Debtor’s Plan is outside the § 1322-defined boundaries of a chapter 13 plan, and is inconsistent with express mandates of §§ 1322(b)(10) and 1328, it has no legal effect and is hereby declared void and ineffective. Consequently, that portion of the Confirmation Order which confirms the discharge of the ECMC student loan and that portion of the Discharge Order which purports to discharge Whelton’s liability to ECMC are also declared" }, { "docid": "7879915", "title": "", "text": "plan. Andersen appealed the decision to the Tenth Circuit Bankruptcy Appellate Panel (BAP). In re Andersen, 215 B.R. 792 (10th Cir. BAP 1998). Citing the fact that the issue herein arose after confirmation of the plan and after entry of the order of discharge, id. at 794, the BAP held that confirmation of the plan constituted a finding of undue hardship, rendering the student loans dischargeable. Id. at 796. The BAP thus reversed the ruling of the lower court, concluding that “the ultimate order of discharge properly discharged the balance of the student loan obligation.” Id. This appeal followed. II. Discussion The relevant facts are stipulated, and we review de novo the BAP’s conclusions of law. Woodcock v. Chemical Bank, 45 F.3d 363, 367 (10th Cir.1995). The Bankruptcy Code generally provides that a discharge does not discharge a debtor from a debt arising from an educational loan unless excepting such debt from discharge will impose an undue hardship on the debtor and the debtor’s dependents. 11 U.S.C. § 523(a)(8). This general exception to the discharge of educational loans is applicable to the present chapter 13 case by virtue of 11 U.S.C. § 1328(a)(2). Based on these provisions, ECMC argues that the determination of undue hardship is self-executing and requires a formal adversary proceeding, apart from the plan process. As we note above, the Bankruptcy Court agreed with ECMC’s position and held that Andersen’s student loans were not discharged, despite the confirmed plan’s contrary language. ECMC further argues that the BAP erred in reversing the judgment of the lower court and shifting the burden of proving a lack of undue hardship to the creditor. While we agree with certain propositions advanced by ECMC, we disagree with the conclusion which ECMC seeks to draw from those propositions in this case. We note at the outset that ECMC is correct in stating that the “[djebtor bears the burden of demonstrating undue hardship” with respect to the discharge-ability of educational loans. Woodcock, 45 F.3d at 367. And, we may assume that the Bankruptcy Court correctly held that a debtor must normally prove undue hardship" }, { "docid": "18052867", "title": "", "text": "assigned the consolidated loan to ECMC on June 22, 1999. Neither CSAC nor ECMC attended the creditors’ meeting or objected to the Plan. ECMC filed a proof of claim in the amount of $102,882.51 on June 29, 1999. The record does not reflect whether ECMC or CSAC received copies of the amended plan, but in any case ECMC could not have received a copy before the confirmation hearing on June 29, the same day the amended plan was filed. The Bankruptcy Court (Conrad, J.) confirmed the Plan on June 30, 1999 in a standard order. The findings stated that the plan complied with all applicable provi sions of the Bankruptcy Code, had been proposed in good faith, and was not forbidden by law. (Findings & Order filed July 8,1999.) The order confirmed the Amended Plan containing the discharge by declaration language. ECMC did not appeal the confirmation order. Approximately one year after the Plan was confirmed, the Wheltons borrowed money from a family member, paid off the full amount due under the Plan and received their discharge on July 7, 2000. The Wheltons’ discharge stated specifically that “[p]ursuant to 11 U.S.C. § 1328(a) the debtors are discharged from all debts provided for by the plan or disallowed under 11 U.S.C. § 502, except any debt: ... for a student loan or educational benefit overpayment as specified in 11 U.S.C. § 523(a)(8).” (Order Discharging Debtor filed July 7, 2000.) At no time did Whel-ton file an adversary proceeding to determine the dischargeability of his student loan. ECMC received and accepted payment in the amount of $4,997.00 under the Plan on or about June 27, 2000. On the date of the Wheltons’ discharge, ECMC was the sole holder of Whelton’s consolidated loan. Following the Wheltons’ discharge from bankruptcy, ECMC attempted to collect the student loan debt by wage garnishment. The Wheltons successfully contested the wage garnishment. In a decision dated June 25, 2001, a hearing officer from the United States Department of Education reluctantly concluded that the department could not substitute its judgment for the order of the Bankruptcy Court confirming the" }, { "docid": "4249954", "title": "", "text": "in July 1989, and Great Lakes obtained a default money judgment against him in December 1992 in the amount of $31,583.77. In November 1992, Hanson filed a voluntary petition (the “Petition”) for Chapter 13 relief. After receiving notice of the Petition, Great Lakes moved to vacate the default judgment against him, with the right to reopen if the bankruptcy was dismissed. The state court granted Great Lakes’ motion. Great Lakes timely filed a proof of claim in the amount of $35,531.08. Hanson’s Chapter 13 Plan (the “Plan”) proposed to pay $135 monthly to Great Lakes over 60 months, which was 19% of the claim. The Plan was confirmed without objection. At no time did Hanson file an adversary pro ceeding to determine the dischargeability of his student loan. Hanson completed payments under the Plan, and the bankruptcy court entered a discharge order on September 11, 1997. The order provided, in relevant part: 1. Pursuant to 11 U.S.C. Section 1328(a), the debtor is discharged from all debts provided for by the plan or disallowed under 11 U.S.C. Section 502, except any debt: (c) for a student loan or educational benefit overpayment as specified in 11 U.S.C. Section 523(a)(8) in any case in which discharge is granted prior to October 1, 1996. Pursuant to the terms of the order, Hanson’s student loan debt was discharged because the discharge was granted after October 1, 1996. Unfortunately, the discharge order reflected an October 1, 1996 sunset provision that already had been repealed by Congress. The result of the error was that Hanson’s student loan debt was discharged without any showing of undue hardship, which is required by 11 U.S.C. § 523(a)(8) prior to the discharge of student loan debt. No objection to the error was raised until May 2003, when ECMC, Great Lakes’ successor-in-interest, filed a motion for relief from the order under Rule 60(b)(4) of the Federal Rules of Civil Procedure. The bankruptcy court granted ECMC’s motion on the ground that the discharge order was void because it violated ECMC’s due process rights. The district court affirmed. II. Discussion A. Standard of Review" }, { "docid": "4249953", "title": "", "text": "BAUER, Circuit Judge. Debtor-appellant Craig Hanson filed for Chapter 13 bankruptcy relief in November 1992, listing only his unsecured student loan debt of approximately $31,500 on his Chapter 13 schedules. After Hanson’s Chapter 13 plan was confirmed without objection, Hanson made monthly payments of $135 over 60 months on his student loan, and the bankruptcy court entered an order discharging his debt in September 1997. The discharge order was erroneous because the Bankruptcy Code makes student loan debt nondischargeable absent a showing of undue hardship by the debtor, and Hanson had made no such showing. Despite the error, the order went unchallenged until May 2003, when creditor Educational Credit Management Corporation (“ECMC”) filed a motion for relief from the discharge order in the bankruptcy court. The bankruptcy court granted ECMC’s motion, and the district court affirmed. We affirm. I. Background Between 1980 and 1987, Hanson borrowed money from Great Lakes Higher Education Corporation (“Great Lakes”) to finance his undergraduate and graduate education at the University of Wiseonsin-River Falls. Hanson defaulted on the student loan debt in July 1989, and Great Lakes obtained a default money judgment against him in December 1992 in the amount of $31,583.77. In November 1992, Hanson filed a voluntary petition (the “Petition”) for Chapter 13 relief. After receiving notice of the Petition, Great Lakes moved to vacate the default judgment against him, with the right to reopen if the bankruptcy was dismissed. The state court granted Great Lakes’ motion. Great Lakes timely filed a proof of claim in the amount of $35,531.08. Hanson’s Chapter 13 Plan (the “Plan”) proposed to pay $135 monthly to Great Lakes over 60 months, which was 19% of the claim. The Plan was confirmed without objection. At no time did Hanson file an adversary pro ceeding to determine the dischargeability of his student loan. Hanson completed payments under the Plan, and the bankruptcy court entered a discharge order on September 11, 1997. The order provided, in relevant part: 1. Pursuant to 11 U.S.C. Section 1328(a), the debtor is discharged from all debts provided for by the plan or disallowed under 11" }, { "docid": "12736245", "title": "", "text": "twenty-one (21) days after the conclusion of the meeting of creditors or within twenty-five (25) days from the date of service of the plan, whichever is later.” A discharge under 11 U.S.C. § 1328(a) was entered on November 27, 2002, after plan payments were completed. In September 2002, the Repps filed a two-count adversary proceeding against NELA and ECMC. Count one sought a declaratory judgment that the binding effect of the plan term, pursuant to 11 U.S.C. § 1327 and Pardee, discharged the student loan debt. Count two alleged a § 523(a)(8) dischargeability cause of action to discharge the student loan as an undue hardship. ECMC answered and counterclaimed for a declaratory judgment “that the portion of the confirmation order providing that the balance of the debtors’ educational loans shall be discharged upon plan completion is null and void, as no adversary proceeding was initiated prior to that provision, and the provisions violates the Fifth Amendment due process rights of defendant ECMC under U.S.C.A. Const. Amend. 5.” On cross-motions for summary judgment, the bankruptcy court granted the debtors’ motion, ruling that Pardee controlled. This timely appeal ensued. JURISDICTION The bankruptcy court’s subject-matter jurisdiction was based on 28 U.S.C. § 1334(b). We have appellate jurisdiction under 28 U.S.C. § 158(a)(1). ISSUE Whether due process requires that a student loan creditor, whose debt would be discharged by a chapter 13 plan provision, receive the kind of notice required for the adversary proceeding that is the method prescribed by Federal Rule of Bankruptcy Procedure 7001(6) for determining a student loan’s discharge status under 11 U.S.C. § 523(a)(8). STANDARD OF REVIEW Whether adequate due process notice was given in any particular instance is a mixed question of law and fact that we review de novo. Demos v. Brown (In re Graves), 279 B.R. 266, 270 (9th Cir. BAP 2002); GMAC Mortgage Corp. v. Salisbury (In re Loloee), 241 B.R. 655, 659 (9th Cir. BAP 1999). DISCUSSION The Ninth Circuit held in Pardee that, regardless of whether a chapter 13 plan should originally have been confirmed, the preclusive effect of plan confirmation orders extended to" }, { "docid": "4159644", "title": "", "text": "provision discharging the student loans, that provision and the discharge order were nonetheless binding on the parties under principles of finality and res judicata and the student loan was discharged. II. Tenth Circuit ruling in In re Andersen. The Bankruptcy Code generally provides that a discharge does not discharge debt arising from a government-guaranteed or insured educational loan “unless excepting such debt from discharge ... will impose an undue hardship on the debt- or and the debtor’s dependents.” In re Andersen, 179 F.3d 1253, 1255 (10th Cir.1999) (citing 11 U.S.C. § 523(a)(8)). This policy is reflected in Chapter 13 of the Code, which states (insofar as relevant here) that a discharge granted under § 1328 discharges all debts provided for in the debtor’s plan except for certain kinds of debt specified in § 523(a), which includes the foregoing student loan hardship provision. In In re Andersen, the debtor’s Chapter 13 plan included the following language: All timely filed and allowed unsecured claims, including the claims of [HEAF] ..., which are government guaranteed education loans, shall be paid ten percent (10%) of each claim, and the balance of each claim shall be discharged. Pursuant to 11 U.S.C. § 523(a)(8), excepting the aforementioned education loans from discharge will impose an undue hardship on the debtor and the debtor’s dependents. Confirmation of debtor’s plan shall constitute a finding to that effect and that said debt is dis-chargeable. In re Andersen, 179 F.3d at 1254. With the exception of this “finding” in the debt- or’s plan, the Andersen case is nearly identical to the instant case. The creditor holding the student loan promissory notes in Andersen, HEAF, filed an objection to the plan but it was denied as untimely. The plan was subsequently confirmed. HEAF did not appeal the order of confirmation. Id. The student loan notes were later transferred from HEAF to ECMC. The debtor completed all payments under the plan and was granted a discharge pursuant to § 1328(a)(2). When ECMC subsequently tried to collect on two of the promissory notes, the debtor re-opened her bankruptcy case and filed a complaint to" }, { "docid": "12662847", "title": "", "text": "13 plan provision required an adversary proceeding and whether the confirmation process violated a creditor’s due process rights are both legal questions we review de novo.” Banks v. Sallie Mae Servicing Corp. (In re Banks), 299 F.3d 296, 300 (4th Cir.2002). III.FACTS The Debtor filed her chapter 13 petition and plan on July 28, 1998. She states in her brief that her chapter 13 petition included one secured debt for an automobile and her unsecured student loan in the amount of $17,000 owed at that time to Bank One/Great Lakes Higher Education Corporation. The Debtor had previously discharged all of her unsecured debt, other than the student loan, in a chapter 7 case that closed a mere two months before she filed her chapter 13 petition. The Debt- or’s chapter 13 plan included the following provision discharging the Debtor’s student loan: (16) All timely filed and allowed unsecured claims, including the claim of Bank One/Great Lakes Higher Education, which are government guaranteed education loans, shall be paid five percent (5%) of each claim, and the balance of each claim shall be discharged. Pursuant to 11 U.S.C. Section 523(a)(8), excepting the aforementioned education loans from discharge will impose an undue hardship on the debtor and the debtor’s dependents. Confirmation of debtor’s plan shall constitute a finding to that effect and that said debt is dis-chargeable. As noted by the bankruptcy court, this or similar plan language has become known as a “discharge by declaration” provision. No objections were filed to the Debtor’s plan and it was confirmed on October 16, 1998. Subsequent to confirmation of her plan, the Debtor’s student loan was assigned to ECMC. An order discharging the Debtor was entered on April 27, 2001, and the case was closed on May 1, 2001. On December 19, 2002, ECMC filed a motion to reopen the case which was granted on December 23, 2002. Thereafter, on January 27, 2003, ECMC filed its Motion to Vacate the Debtor’s discharge as to the student loan. In bringing its Motion to Vacate, ECMC relied on Civil Rule 60(b)(4) and (6). On July 17, 2003," }, { "docid": "15916681", "title": "", "text": "constitutes interest, collection fees or costs. ECMC also did not present any evidence which explained how the payments set forth in Defendant’s Exhibit 17 had been applied so that the balance remaining on the Student Loan Obligation was $7,655.97 as of February 2002. Interest continues to accrue on the Student Loan Obligation at the rate of the original loans, which, according to ECMC’s counsel, was around 3.4% at the time of trial. Unpaid interest is capitalized annually on the Student Loan Obligation because Mr. Cota elected that option in his application for the loans. (See Def.’s Ex. 3.) On October 24, 2000, the Debtors filed a Chapter 13 Petition. The Debtors confirmed their Chapter 13 Plan on September 12, 2001, which provided for the curing of $2,500.00 in mortgage arrears. Under the Debtors’ original plan, the plan payment was $450.00 a month for the first 24 months and $715.00 for an additional 36 months. On December 21, 2001, the Debtors, after surrendering their vehicle, filed a Motion to Modify their plan which reduced the amount of the plan payments to $200.00 for the remaining 60-month term. Under the Modified Plan, the Debtors are curing arrearages on their mortgage of $5,863.47. This adversary proceeding was filed on February 12, 2002. A Modified Order of Confirmation was entered on March 12, 2003. Currently, the Debtors share the use of one car — a 1988 Oldsmobile which they are borrowing from a relative. The Modified Order of Confirmation included a provision that no payments are to be made on the Student Loan Obligations either outside or through the plan. At the time of trial, Mr. Cota testified that he thought the Student Loan Obligation could not be paid pro rata with other unsecured claims because the Chapter 13 Trustee would object. Debtors’ counsel claimed to have no memory that there was a provision in the Modified Confirmation Order prohibiting payments of the Student Loan Obligation as a general unsecured claim. When that term was pointed out to him by ECMC’s counsel, Debtors’ counsel said it was a mistake. Mr. Cota has never applied" }, { "docid": "12662848", "title": "", "text": "balance of each claim shall be discharged. Pursuant to 11 U.S.C. Section 523(a)(8), excepting the aforementioned education loans from discharge will impose an undue hardship on the debtor and the debtor’s dependents. Confirmation of debtor’s plan shall constitute a finding to that effect and that said debt is dis-chargeable. As noted by the bankruptcy court, this or similar plan language has become known as a “discharge by declaration” provision. No objections were filed to the Debtor’s plan and it was confirmed on October 16, 1998. Subsequent to confirmation of her plan, the Debtor’s student loan was assigned to ECMC. An order discharging the Debtor was entered on April 27, 2001, and the case was closed on May 1, 2001. On December 19, 2002, ECMC filed a motion to reopen the case which was granted on December 23, 2002. Thereafter, on January 27, 2003, ECMC filed its Motion to Vacate the Debtor’s discharge as to the student loan. In bringing its Motion to Vacate, ECMC relied on Civil Rule 60(b)(4) and (6). On July 17, 2003, the bankruptcy court granted the Motion to Vacate based on its finding that ECMC had been denied due process of law and that the order granting confirmation of the Debtor’s plan was void pursuant to Civil Rule 60(b)(4). The bankruptcy court found that Civil Rule 60(b)(6) was not applicable to the present case. The Debtor filed her timely appeal. IV. DISCUSSION Section 523(a)(8) of the Bankruptcy Code provides: A discharge under section 727, 1141, 1228(a), or 1328(b) of this title does not discharge an individual debtor from any debt ... for an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship, or stipend, unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents. Pursuant to Bankruptcy Rules 4007 and 7001(6) an action to determine discharge-ability of a debt must" } ]

[ { "docid": "4154606", "title": "", "text": "“factual finding” of the Court of Criminal Appeals the presumption of correctness mandated by 28 U.S.C. § 2254(d). He also argues that the prosecutor’s comment was not harmless error. Section 2254(d) does not require deference to the Court of Criminal Appeals on this issue. The presumption of correctness applies only to “a determination ... of a factual issue.” The state court’s holding that the prosecutor’s comment violated the Fifth Amendment is “a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case” and is therefore “open to review on collateral attack in federal court.” Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980). See Bertolotti v. Dugger, 883 F.2d 1503, 1523, 1524 (11th Cir.1989) (decision of Florida court that prosecutor’s remark was “a comment on the defendant’s exercise of his right to remain silent” constituted “a non-binding opinion on a mixed question of law and fact”), cert. denied, — U.S. -, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990). Accordingly, the merits of Montoya’s Fifth Amendment issue must be addressed. A statement violates the Fifth Amendment if “the prosecutor intended to comment on [the defendant’s] failure to testify or [if] a jury would naturally and necessarily interpret the prosecutor’s remarks in that light.” Brock v. McCotter, 781 F.2d 1152, 1159 (5th Cir.), cert. denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986). Resolution of this issue depends heavily on the context in which the prosecutor’s remark was made. Id. We quote in the margin the full statements of counsel and court. Viewing the prosecutor’s statement in the larger context of his arguments both before the exchange and after Montoya had interrupted to object, it appears that he did not intend to comment on Montoya’s failure to testify at the punishment phase. Montoya’s closing argument centered on how the jury should respond to Special Issue No. 1, which asked: “Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant, Ramon Montoya, ... was committed deliberately ... ?” See" } ]

[ { "docid": "14449859", "title": "", "text": "the hearing on the motion in limine under Subsection F. The trial having commenced within seventy non-excludable days of Grosz’s first appearance before the court, there was no violation of the Speedy Trial Act in this case. rv Grosz next raises a number of claims concerning alleged prosecutorial misconduct that supposedly deprived Grosz of a fair trial. We address three of those claims below. A Grosz asserts that the government persistently and “impermissibly invited the jury to infer Mr. Grosz’s guilt from his constitutionally protected silence” in its closing argument. It is, of course, improper for a prosecutor to comment on a defendant’s exercise of his Fifth Amendment rights. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). The government is not prohibited, however, from commenting on the defense’s failure to coun ter or explain the evidence as opposed to the defendant’s failure to testify. United States v. Guzman, 781 F.2d 428, 432 (5th Cir.), cert. denied, 475 U.S. 1143, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986); United States v. Bright, 630 F.2d 804, 825 (5th Cir.1980). This court applies a two-tiered test to Grosz’s claim. The court first must determine whether the remarks were constitutionally impermissible. If the court finds them to be impermissible, the court must consider whether they were harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The test for determining whether the prosecutor’s remarks were constitutionally impermissible is: “(1) whether the prosecutor’s manifest intent was to comment on the defendant’s silence or (2) whether the character of the remark was such that the jury would naturally and necessarily construe it as a comment on the defendant’s silence.” United States v. Collins, 972 F.2d 1385, 1406 (5th Cir.1992) (internal quotation and citation omitted), cert. denied, 507 U.S. 1017, 113 S.Ct. 1812, 123 L.Ed.2d 444 (1993), and cert. denied sub nom., Ross v. United States, 507 U.S. 1017, 113 S.Ct. 1812, 123 L.Ed.2d 444. The prosecutor’s intent is not manifest if there is some other, equally plausible explanation for the remark. Id." }, { "docid": "12350134", "title": "", "text": "1039, 1041 (5th Cir.1974). The jury’s apparent conclusion that the defendant was not being fully truthful no doubt contributed significantly to the guilty verdict. II. THE PROSECUTOR’S CLOSING ARGUMENT The defendant objects for the first time on this appeal to certain comments made by the prosecution in its closing argument. Since the defendant failed to object at trial, we may only consider whether the comments prejudiced the defendant if we find that the trial court committed a “plain error” in failing sua sponte to reprimand the prosecutor and issue a curative instruction. Fed.R.Cr.P. 52. We are unable to conclude that the trial court’s failure to act constituted plain error. A plain error is one which is “both obvious and substantial.” United States v. Brown, 555 F.2d 407, 420 (5th Cir.1977), cert, denied, 435 U.S. 904, 98 S.Ct. 1448, 55 L.Ed.2d 494 (1978); Sykes v. United States, 373 F.2d 607, 612 (5th Cir.1966), cert, denied, 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138 (1967). Errors of a constitutional magnitude will be more freely noticed under the plain error rule than errors of a lesser degree. Brown, 555 F.2d at 420. The majority of the allegedly prejudicial comments made by the prosecutor were simply permissible inferences to be drawn from the evidence. The prosecutor in no way implied that his conclusions were based on knowledge outside of the record nor did he inject extrinsic or prejudicial matters that had no basis in the evidence. As this Court noted in United States v. Morris, 568 F.2d 396 (5th Cir.1978): [A lawyer in closing argument has the] right to state his contention as to the conclusions that the jury should draw from the evidence. Therefore, an attorney’s statements that indicate his opinion or knowledge of the case as therefore presented before the court and jury are permissible if the attorney makes it clear that the conclusions he is urging are the conclusions to be drawn from the evidence. Id. at 401. However, two of the prosecutor’s comments merit closer scrutiny. First, the prosecutor’s statement that one of the government’s expert witnesses, Chuck Lanham," }, { "docid": "16749861", "title": "", "text": "v. Bell, 367 F.3d 452, 471 (5th Cir.2004)). “We have repeatedly emphasized that the cumulative error doctrine necessitates reversal only in rare instances and have previously stated en banc that ‘the possibility of cumulative error is often acknowledged but practically never found persuasive.’ ” Delgado, 672 F.3d at 344 (footnote omitted) (quoting Derden v. McNeel, 978 F.2d 1453, 1456 (5th Cir.1992) (en banc)). “Its application is especially uncommon where, as here, the government presents substantial evidence of guilt.” Id. A cumulative error claim requires that “we evaluate the number and gravity of the errors in the context of the case as a whole.” United States v. Valencia, 600 F.3d 389, 429 (5th Cir.2010). As we have discussed, Ramey has demonstrated, at most, three potential errors: the government’s alleged reference to his Fifth Amendment privilege, the introduction of testimony concerning the impact of Ra-mey’s crime on a victim of the Manhattan Gold scheme, and the government’s admission of Rule 404(b) evidence in the absence of notice. Even assuming, arguendo, that these were errors, given the substantial evidence of Ramey’s guilt adduced at trial, and the relatively inconsequential nature of the errors in the context of the entirety of the case, we are not persuaded that their cumulative effect denied Ramey of a fair trial. See United States v. Neal, 27 F.3d 1035, 1051-52 (5th Cir.1994). Simply put, this is not “the unusual case in which synergistic or repetitive error violate[d]” the trial’s fundamental fairness. Delgado, 672 F.3d at 344. III. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. 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. . As further discussed infra, Yashare testified that she followed her father’s instructions because she was \"trained and programmed” from an early age to obey Ramey and, had she protested, Ramey would have physically abused her. . The court also held that Stone's statement did not \"have the clear effect of drawing attention to the" }, { "docid": "23498245", "title": "", "text": "64 L.Ed.2d 800 (1980), he may properly comment on the weight of the evidence. See Casel, 995 F.2d at 1309. Here, it is clear from the context in which the statement was made that the prosecutor was not expressing his personal opinion about the credibility of Martin. Rather, he was directing the jury to look to other evidence that supported Martin’s testimony, which, because it was the testimony of a convicted felon, would be suspect standing alone. This type of argument “is permissible to the extent that it draws a conclusion based solely on the evidence presented.” Id. (citing United States v. Enstam, 622 F.2d 857, 869 (5th Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981); United States v. Bright, 630 F.2d 804, 824 (5th Cir.1980), and United States v. Binker, 795 F.2d 1218, 1223 (5th Cir.1986)). Such is the ease here. The second statement which Nichols objects to was made during the state’s argument at the close of the guilVinnocence phase of the trial. In arguing that Nichols fired the shot that killed Shaffer, the prosecutor stated: “And I’ll tell you it was his hand that did the killing.” Once again, however, Nichols gives an incomplete picture. Immediately after the prosecutor made the above-quoted statement, he asked “How do you know that?” and then proceeded to summarize the evidence presented at trial which would tend to support the theory that Nichols fired the fatal shot. In United States v. Morris, 568 F.2d 396 (5th Cir.1978), this Court explained that a prosecutor may state his own opinion or knowledge of the case as long as he makes it clear that “the conclusions he is urging are conclusions to be drawn from the evidence.” Id. at 401. Here, the prosecutor argued the admitted evidence in support of the challenged statement. Hence, in the context of the prosecution’s argument the statement was not improper. (vii) Lastly, Nichols asserts that at sentencing the prosecution “improperly commented on Nichols’ failure to call witnesses or present evidence.” Again, without citation to authority or meaningful argument, Nichols quotes four sentences which" }, { "docid": "10111813", "title": "", "text": "the court abused its discretion by mentioning before the jury Stewart’s dismissed retaliation claim, he fails to show an abuse of discretion, because the court instructed the jury multiple times that it was the sole judge of the facts, and to disregard the court’s statements in arriving at a verdict. Turlington v. Phillips Petroleum Co., 795 F.2d 434, 443 (5th Cir.1986). 4. Stewart contends the court wrongfully precluded him from presenting evidence related to Duncan’s financial misconduct. But, as discussed supra, exclusion of irrelevant evidence does not constitute an abuse of discretion. Pena, 542 F.2d at 294. 5. To the extent Stewart asserts cumulative error warrants reversal, for the reasons- stated above, he fails to show any reversible error. Moreover, even assuming errors, Stewart fails to show they “so fatally infect the trial that they violated [its] fundamental fairness”. United States v. Delgado, 672 F.3d 320, 344 (5th Cir.2012) (quoting United States v. Fields, 483 F.3d 313, 362 (5th Cir.2007)). C. Finally, although Stewart challenges the adverse summary judgment on his discrimination claim against IAM, his contentions turn on IAM’s being his claimed employer. Stewart concedes “District 19 initiated ... the discrimination against Stewart”, and states he named IAM as a defendant “under well-established .law that exposes superficially distinct entities to liability upon a finding that they represent a single, integrated enterprise”. Therefore, because his claims of harmful error at trial fail, as discussed supra, there is no underlying liability to impute to IAM for claimed discrimination. In any event, his employer-liability claim fails, essentially for the reasons stated in the comprehensive and well-reasoned recommendation by the magistrate judge, as adopted by the district court. III. For the foregoing reasons, the judgment is 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": "16168517", "title": "", "text": "show that the ... sentence the district court imposed was not influenced in any way by the erroneous Guidelines calculation.” Id. at 719. Here, the district court imposed a sentence at the bottom of the higher, incorrect guidelines range and stated that the guidelines range was “fair and reasonable.” We see nothing in the record to indicate that the district court’s reasoning in choosing a sentence would have been the same had it been confronted with a guidelines range of 97-121 months. The Government has not shown that Peralta’s sentence was not influenced by an erroneous calculation. See Ibarra-Luna, 628 F.3d at 717-19. III. CONCLUSION For the above reasons, we AFFIRM the convictions and sentences of Ceballos. We VACATE the sentences of Peralta and REMAND for re-sentencing in accordance with this opinion. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Although Lilliana is referred to as Ceballos’s wife, during her testimony she stated that they were not married but were \"just living together.” . The dissent apparently discounts Vasquez’s testimony because he did not testify as to Ceballos's specific statements and also parses through Vasquez’s testimony attempting to cast doubt as to Vasquez’s identification of Ceballos. Dissent at 2-4 & n. 2. Further, the dissent attempts to discredit Vasquez's testimony because he had been drinking alcohol when he observed Ceballos at the hotel. Id. at 4. \"It is not our role, however, under our standard of review for sufficiency of the evidence, to second-guess the determinations of the jury as to the credibility of the evidence.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir.2005). . The dissent would find the district court erred in applying a two-level enhancement for obstruction of justice. Dissent at 12-16. But the rationale and arguments advanced in the dissent to support such a view are not advanced in Ceballos's brief on appeal and therefore are not properly before us. As we view Ceballos’s brief, he is raising" }, { "docid": "3384956", "title": "", "text": "to suggest that Mr. Borchardt did not know that he had ingested heroin. There has been no contrary explanation offered that in any way conflicts with that except a few things and I will talk about those the next time that I get up. According to Borchardt, the prosecutor’s remark was an indirect reference to Borchardt’s failure to testify because it pointed to missing testimony that only Borchardt could provide. Borchardt contends that the remark violated his fifth amendment privilege against self-incrimination. The fifth amendment prohibits a prosecutor from commenting directly or indirectly on a defendant’s failure to testify. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). A prose cutor may comment, however, on the failure of the defense, as opposed to the defendant, to counter or explain the evidence. United States v. Guzman, 781 F.2d 428, 432 (5th Cir.), cert. denied, — U.S.-, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986). Such a comment is a basis for reversal only where it is “of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” United States v. Bright, 630 F.2d 804, 825 (5th Cir.1980). The prosecutor’s comment in the instant case was not such that the jury would necessarily construe it as a comment on Borchardt’s failure to testify. Borchardt’s attorney had suggested during his opening statement that Borchardt did not know that the packets found in his stomach contained heroin. The prosecutor’s remark that this explanation was incredible and that no other explanation had been offered, rather than a comment on Borchardt’s failure to testify, was directed at the failure of Borchardt’s attorney to offer any alternate theory of defense. Alternate explanations for Borchardt’s possession of the heroin might have come from a variety of sources other than Borchardt himself, including fellow inmates. Viewed in this context, the prosecutor’s remark was not an unconstitutional reference to Borchardt’s failure to testify. Having rejected each of Borchardt’s assertions, we AFFIRM the judgment of the district court. AFFIRMED. . Narcan is a narcotic" }, { "docid": "4033838", "title": "", "text": "have also held that a jury’s decision to acquit a defendant on some of the charges against him indicates that the defendant was not prejudiced by evidentiary spillover. See United States v. Arledge, 553 F.3d 881, 896 (5th Cir.2008). Thus, to the extent that the district court erred in not severing the honest services fraud charge from the remainder of the trial, Reagan cannot show that his substantial rights were affected, and his claim is unavailing. I. Closing argument misconduct 1. Standard of review “Counsel is accorded wide latitude during closing argument.” United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir.1995) (quoting United States v. Willis, 6 F.3d 257, 263 (5th Cir.1993)). Although a “prosecutor is confined in closing argument to discussing properly admitted evidence and any reasonable inferences or conclusions that can be drawn from that evidence,” United States v. Mendoza, 522 F.8d 482, 491 (5th Cir.2008), “[r]eversal based on improper argument by the prosecutor is not called for when there has not been a strong showing of a deleterious effect upon the right to a fair trial.” Rodriguez, 43 F.3d at 124. “The closing argument must be analyzed in the context of the entire trial to determine whether it affected substantial rights of the accused.” Id. “When analyzing the impropriety of prosecutorial comments, the central issue for this court is ‘whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.’ This step ‘sets a high bar.’” Rashad, 687 F.3d at 643 (citation omitted) (quoting United States v. Gracia, 522 F.3d 597, 603 (5th Cir.2008)). When “there are no timely objections to statements made by the prosecution, this court reviews them for plain error.” Id. at 643. 2. Analysis During the closing argument, the only objection made was to a comment made by the Government during its rebuttal that Hill and Farrington claim was improper bolstering of witnesses’ credibility. The objection followed the Government’s statement that Potashnik’s wife Cheryl had been given a choice as to whether to plead guilty to Count 10, the bribery conspiracy count, or a different charge, a fact that" }, { "docid": "15761694", "title": "", "text": "argued that the use of the word “perjured” was particularly condemning and mandated a mistrial. The defense motion for mistrial was denied; the defense objection was sustained and the jury was immediately given a cautionary instruction. This Court has formulated a test for determining when a prosecutor’s closing argument is sufficiently prejudicial to deny defendant a fair trial: “Does the prosecutor’s argument, taken as a whole in the context of the entire case, prejudicially affect substantial rights of the defendant?” United States v. Corona, 551 F.2d 1386, 1388 (5th Cir. 1977). Appellant argues that, in the above quoted remark, the prosecutor claimed that she knew Appellant was a perjurer and any further questioning would elicit only more perjury. As a general rule, neither the prosecutor nor the defense counsel may express an opinion of a witness’s credibility. United States v. Morris, 568 F.2d 396, 402 (5th Cir. 1978); Hall v. United States, 419 F.2d 582, 587 (5th Cir. 1969). However, there is a distinction between an argument which suggests a personal belief and private information and an argument which merely intends to show the witness’s testimony is not supported, but rather is contradicted, by the other evidence. The Government asks us to conclude that the argument here was of the latter variety. Rather convincingly, the Government contends that what the prosecutor really intended to argue was that the tape recordings and the DEA agents’ testimony clearly demonstrated that Appellant perjured himself when he testified, a point clear to everyone in the courtroom who had heard the tape recordings. Although not condoned, such remarks have been held not to be reversible error when the prosecutor’s assertion that a defendant had testified falsely was merely a suggestion that the jury should draw that conclusion from all the evidence in the case, so long as there was no implication that the prosecutor had private information supporting his disbelief of the defendant. United States v. Siegel, 587 F.2d 721, 727 (5th Cir. 1979). Taken in the context of the closing arguments here, the prosecutor’s comment was intended to emphasize the discrepancies between Appellant’s testimony" }, { "docid": "6549229", "title": "", "text": "jurists could debate the district court’s disposition of his motion to reconsider judgment. We DENY the request for a stay of execution. 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. . Buck v. Thaler, 345 Fed.Appx. 923 (5th Cir.2009). . Buck v. Thaler, No. 72, 810 (Tex.Crim.App. Apr. 28, 1999). . Buck, 345 Fed.Appx. 923. . Id. . 545 U.S. 524, 530-31, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). .See id. at 530, 125 S.Ct. 2641. . 28 U.S.C. § 2244(b)(3)(A). . Id. § 2244(b)(2). . Id. § 2244(b)(2)(B)(i). . Id. § 2244(b)(2)(B)(ii) . 28 U.S.C. § 2244(a)-(b)(2). . Id. . Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. . 28 U.S.C. § 2253(c)(1). . 302 F.3d 491, 492 (5th Cir.2002). . Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir.2007); see also Williams v. Quarterman, 293 Fed.Appx. 298, 315 (5th Cir.2008). . Jackson v. Thaler, 348 Fed.Appx. 29, 31-32, 34-35 (5th Cir.2009). . 28 U.S.C. § 2253(c)(2). . Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). . Id. at 336, 123 S.Ct. 1029. . Id. at 360, 123 S.Ct. 1029. . Fed.R.Civ.P. 60(b)(6). . Fed.R.Civ.P. 60(c)(1). . See In re Osborne, 379 F.3d 277, 283 (5th Cir.2004) (\"Motions under Rule 60(b) must be made ‘within a reasonable time,' unless good cause can be shown for the delay.” (citing Pryor v. U.S. Postal Serv., 769 F.2d 281, 287-88 (5th Cir.1985))). . Balentine v. Thaler, 626 F.3d 842, 846 (5th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 2992, 180 L.Ed.2d 824 (2011). . Lindy Investments III v. Shakertown 1992 Inc., 360 Fed.Appx. 510, 512 (5th Cir.2010); see also Matter of Al Copeland Enterprises, Inc., 153 F.3d 268, 271-72 (5th Cir.1998). . See Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (explaining that \"our cases have required a mov-ant seeking relief under Rule 60(b)(6) to show 'extraordinary circumstances' justifying the re-opening of a" }, { "docid": "22042806", "title": "", "text": "once again appears on 9/13 at the mechanic’s store. She had the keys. That’s how that happened. That’s the only way it could happen. There’s only one set of keys, and she had them. It was after this explanation that he made the contested statement. The remark that Delgado had lied was a straightforward comment on the evidence, not an improper assertion of the prosecutor’s personal opinion. The evidence showed that Delgado must have had the keys — the natural corollary being that she must have been lying to the federal agents about her access to the cab. In this context, the prosecutor’s statement was proper. Cf. United States v. Loney, 959 F.2d 1332, 1343 (5th Cir.1992) (“In his closing argument, the prosecutor ... told the jury that ‘[h]e’s not being truthful with you.’ ... The prosecutor ... drew the jury’s attention to the fact that [the defendant] had said one thing but his actions showed another.... [T]he comments of the prosecutor were entirely appropriate, given the evidence before the jury.”). “It is well established that an attorney may recite to the jury those inferences and conclusions he wishes them to draw from the evidence so long as they are based on the evidence.” United States v. Webb, 950 F.2d 226, 230 (5th Cir.1991). Moreover, “unflattering characterizations of a defendant will not provoke a reversal when such descriptions are supported by the evidence.” United States v. Windom, 510 F.2d 989, 994 (5th Cir.1975) (finding no error in a prosecutor’s reference to a defendant as a “con artist”). A prosecutor may not go beyond the evidence and attack a defendant’s character or veracity. See United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237-38 (5th Cir.1990). But reciting the conclusion that the defendant lied on a particular occasion is not, as Delgado contends, equivalent to calling the defendant a liar. Here, the prosecutor’s statement was an inference drawn from specific evidence, not an attack on Delgado’s character. The prohibition on giving personal opinions prevents a prosecutor from giving the jury the impression that he has superior knowledge of the facts based on private" }, { "docid": "16942478", "title": "", "text": "The volume of pornographic images, the sexual molestation of numerous children, Tampico’s membership in NAMBLA, and his smudging the reputation of the Big Brothers program take this case outside the heartland of ordinary cases. Viewing the record as a whole, we cannot say that the district court’s departure was unreasonable. Thus, we find no reversible error in the district court’s upward departure from the sentencing guidelines. D Finally, Tampico claims the district court erred by accepting as evidence the portions of the PSR to which Tampico objected. He contends that, for the portions of the PSR to which he objected, the government should either have been required to introduce evidence to support those facts, or the court should not have considered those facts in enhancing Tampi-co’s sentence. Generally, “a PSR bears sufficient indi-cia of reliability, such that a sentencing judge may consider it as evidence in making the factual determinations required by the Sentencing Guidelines.” United States v. Huerta, 182 F.3d 361, 364 (5th Cir.1999). Although Rule 32 of the Federal Rules of Criminal Procedure requires the court to resolve disputed issues of fact before sentencing, the court can adopt facts contained in the PSR without inquiry as long as the “facts had an adequate evidentiary basis and the defendant does not present rebuttal, evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Huerta, 182 F.3d at 364 (citations omitted). Although Tampico objected to a number of factual issues in the PSR, he did not introduce any rebuttal evidence. Thus, the district court did not err in accepting the PSR as evidence. III For the reasons stated above, Tampico’s conviction and sentence are AFFIRMED. Circuit Judge of the Eleventh Circuit, sitting by designation. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . For the purpose of Supreme Court review, Tampico" }, { "docid": "16749862", "title": "", "text": "evidence of Ramey’s guilt adduced at trial, and the relatively inconsequential nature of the errors in the context of the entirety of the case, we are not persuaded that their cumulative effect denied Ramey of a fair trial. See United States v. Neal, 27 F.3d 1035, 1051-52 (5th Cir.1994). Simply put, this is not “the unusual case in which synergistic or repetitive error violate[d]” the trial’s fundamental fairness. Delgado, 672 F.3d at 344. III. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. 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. . As further discussed infra, Yashare testified that she followed her father’s instructions because she was \"trained and programmed” from an early age to obey Ramey and, had she protested, Ramey would have physically abused her. . The court also held that Stone's statement did not \"have the clear effect of drawing attention to the fact that Ramey invoked his right to silence.” Ramey I, 2008 WL 4582089, at *4. In the case at bar, Ramey does not contend that the prosecutor’s remarks were of such a character that the jury would naturally and necessarily have taken them to be commentary on Ramey’s silence, nor can we conclude that they were. See Rocha, 916 F.2d at 232. Thus, the only questions presently under consideration are whether the prosecutor manifestly intended to comment on Ramey’s silence and, if so, whether the violation was harmless beyond a reasonable doubt. See id.; see also Moreno, 185 F.3d at 472. . Later, Ramey also defended by claiming that he was unaware that his actions — at least as related to the bankruptcy filings — were illegal. . In the lower court, Ramey objected to the admission of this evidence on relevance grounds. He does not reiterate his relevance objection on appeal. . For this reason, Ramey’s claim would fail even if we reviewed for harmless, rather than plain, error." }, { "docid": "12313250", "title": "", "text": "category. United States v. Bush, 451 Fed.Appx. 445, 451 (5th Cir.2011) (unpublished). Because the prosecutor also offered his personal opinion that the theory Boyd claimed to believe was “one of the most preposterous things I’ve ever heard in my life,” and “one of the dumbest things I have ever heard,” we consider whether these statements affected Boyd’s substantial rights. To do so, we consider three factors: (1) the magnitude of the statement’s prejudice, (2) the effect of any cautionary instructions given, and (3) the strength of the inculpatory evidence supporting the conviction. United States v. Aguilar, 645 F.3d 319, 325 (5th Cir.2011). The contested statements were at most weakly prejudicial. The unreasonableness of Boyd’s theory was supported by the theory itself, as well as by the witness testimony and Boyd’s prior recognition of his duty to pay taxes. Viewing the isolated statements in the context of the overall argument, it is clear that the prosecutor argued only that Boyd, an educated professional, did not subjectively believe, in good faith, the objectively unreasonable theories espoused in Cracking the Code. And viewed in the context of the strong evidence of guilt presented in the trial, these brief statements in closing argument did not affect Boyd’s substantial rights. See United States v. Delgado, 672 F.3d 320, 337 (5th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 525, 184 L.Ed.2d 339 (2012). Nor do we find plain error in the district court’s statements, made outside the jury’s presence, that Boyd’s tax theory was “the most absurd theory of all the theories I’ve tried in 20 years,” and “just malarkey.” ROA 470, 472. The jury did not hear these comments, and they provide no basis for reversal. Boyd also challenges two of the district judge’s statements made in front of the jury. During Boyd’s testimony, counsel asked him to “explain to the jury why you think you’re here today.” ROA 963. When the prosecutor objected, the court interjected, “[bjecause he’s indicted and arrested and brought here under the law.” Id. During opening argument, the district court reminded defense counsel to refer to her client by" }, { "docid": "6549228", "title": "", "text": "motion for an abuse of discretion. A motion to alter or amend under Rule 59(e) must clearly establish either a manifest error of law, present newly discovered evidence, or rely on an intervening change in controlling law. In denying Buck’s motion, the district court rejected any claims that it relied on Respondent’s alleged misrepresentations in reaching a decision. Instead, the district court stated its denial was based on the record and controlling law. Buck’s Rule 59(e) motion fails to cite a manifest error of law, present newly discovered evidence, nor does it rely on an intervening change in controlling law. Because we conclude that jurists of reason could not disagree with the district court’s resolution of Buck’s Rule 59(e) motion, we deny his COA. We treat Buck’s request for a COA on the issue of whether his due process and equal protection claims should be reconsidered as an application for permission to file a successive habeas petition, and that application is DENIED. We DENY Buck’s application for a COA as to his contention that reasonable jurists could debate the district court’s disposition of his motion to reconsider judgment. We DENY the request for a stay of execution. 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. . Buck v. Thaler, 345 Fed.Appx. 923 (5th Cir.2009). . Buck v. Thaler, No. 72, 810 (Tex.Crim.App. Apr. 28, 1999). . Buck, 345 Fed.Appx. 923. . Id. . 545 U.S. 524, 530-31, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). .See id. at 530, 125 S.Ct. 2641. . 28 U.S.C. § 2244(b)(3)(A). . Id. § 2244(b)(2). . Id. § 2244(b)(2)(B)(i). . Id. § 2244(b)(2)(B)(ii) . 28 U.S.C. § 2244(a)-(b)(2). . Id. . Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. . 28 U.S.C. § 2253(c)(1). . 302 F.3d 491, 492 (5th Cir.2002). . Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir.2007); see also Williams v. Quarterman, 293 Fed.Appx. 298, 315 (5th Cir.2008). . Jackson v. Thaler, 348 Fed.Appx. 29," }, { "docid": "2972370", "title": "", "text": "Misconduct During Closing Argument Finally, Jimenez-Elvirez contends that the prosecutor’s comments during closing argument impermissibly bolstered Martinez’s credibility and thus violated his right to a fair trial. As with his last two assignments of error, Jimenez-Elvirez acknowledges that our review is limited to plain error due to his failure to object at trial. See United States v. Aguilar, 645 F.3d 319, 323 (5th Cir. 2011). As a general rule, a prosecutor may not express a “personal opinion on the merits of the case or the credibility of witnesses” except to the extent the opinion is based on the evidence in the case. United States v. Alaniz, 726 F.3d 586, 616 (5th Cir. 2013) (internal quotations marks and citation omitted). A prosecutor may not vouch for the credibility of a witness in a way that “might reasonably lead the jury to believe that there is other evidence, unknown or unavailable to the jury, on which the prosecutor was convinced of the accused’s guilt.” United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010). Nor may a prosecutor “offer personal assurances to the jury that government witnesses are telling the truth” or “tell the jury that law enforcement witnesses should be believed simply because they were doing their job.” United States v. Gracia, 522 F.3d 597, 601 (5th Cir. 2008). We “evaluat[e] the remark in light of the context in which it is made.” United States v. Valencia, 600 F.3d 389, 409 (5th Cir. 2010). Jimenez-Elvirez argues that the following statements were improper: Now, with respect to the testimony, there are instructions given to you in paragraph 1.08 [of the jury charge] of what to consider in determining a witness’s credibility. The case would have been a lot easier if all the agents said exactly the same thing and if they all said, oh, it was an unmarked unit, oh, yes, I had my lights and siren, and it would make it a lot easier. But that’s not what happened. So what inference can you draw from someone who says, I was in an unmarked unit, the flash — the bar" }, { "docid": "21570023", "title": "", "text": "States v. Mackay, 33 F.3d 489, 495 (5th Cir.1994)); see also Cotton v. Cockrell, 343 F.3d 746, 751 (5th Cir.2003). “The prosecutor’s intent is not manifest if there is some other, equally plausible explanation for the remark.” Cotton, 343 F.3d at 751 (quoting United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir.1996)). In deciding whether a jury would naturally and necessarily construe a remark as a comment on the defendant’s failure to testify, “ ‘the question is not whether the jury possibly or even probably would view the challenged remark in this manner, but whether the jury necessarily would have done so.’ ” Id. (quoting Grosz, 76 F.3d at 1326). The challenged testimony was made in response to a question from Ghassan’s counsel, a question that obviously could not be answered by the witness. The testimony itself, and the prosecutor’s reference to that testimony, did not mention the failure to testify, and we hold that a jury would not necessarily have viewed either as a comment on Ghassan’s choice not to take the stand in his defense. See United States v. Guerra, 293 F.3d 1279, 1288-89 (11th Cir.2002) (holding that where a government witness testified on cross-examination, ‘You would have to ask your client,” there was “no ground for concluding that the jury would naturally and necessarily construe the comment to refer to [the defendant’s] supposed silence, as the context of the statement reveals that the witness was referring to his inability to answer the question”). Moreover, the obvious purpose in raising the statement during closing arguments was to direct the jury’s attention to evidence that the Murabaha Agreement was part of Defendants’ attempt to conceal Marzook’s investment. The district court did not err in denying Ghassan’s objection. D. Failure to Redact Wiretap Recording 1.Background Defendants claim that the district court erred by denying a mistrial after the Government erroneously played a taped conversation of Ghassan in which he stated “and America practiced terrorism.” The Government had been ordered to redact the conversation to exclude those words but failed to do so. The mistake was not caught until the" }, { "docid": "14723138", "title": "", "text": "is unexhausted) and there are no additional state remedies available to pursue, see Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir.2001); or, when an issue is properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule, see McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999). “Ordinarily, violation of firmly established and regularly followed state rules ... will be adequate to foreclose review of a federal claim. There are, however, exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.” Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (internal quotation marks and citations omitted). B. AEDPA Deference If the claim was not procedurally defaulted, and was adjudicated on the merits by the state court, we afford the state court’s determinations deference under AEDPA. In doing so, we determine whether the state court’s determinations, (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Absent adjudication on the merits, our review of the claim is de novo. Bond v. Beard, 539 F.3d 256, 263 (3d Cir.2008). IV.ANALYSIS Rolan’s claims before this Court consist of three prosecutorial misconduct claims, a Fifth Amendment claim and a Confrontation Clause claim. We will address each of these claims in turn. A. Prosecutorial Misconduct Rolan argues that his conviction should be vacated based on (1) the prosecutor’s statements regarding Vargas’s failure to testify earlier in the case (“Vargas statements claim”); (2) the prosecutor’s comments about Rolan’s failure to assert the self-defense theory until 1996 (“self-defense statements claim”); and (3) the prosecutor’s alleged misstatements of evidence in his closing argument (“misstatements of evidence claim”). The District Court, adopting the Superior Court’s conclusions, held that Rolan’s claims" }, { "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": "8692532", "title": "", "text": "admitted into evidence. Moreover, even if the targeted comments had been unsupported by evidence, they could not have materially prejudiced the defendant. The state’s argument that Caldwell’s mere reloading of his weapon prior to his second hostile encounter with Henry somehow .negated his self-defense claim was susceptible to refutation during defense counsel’s closing argument. Caldwell has also attacked the prosecutor’s statement in summation that “I believe that all the testimony shows beyond a reasonable doubt [that Caldwell] purposely took the life of Ricky Lee Henry.” Ordinarily, a prosecutor may not express a personal opinion concerning the guilt of the defendant or the credibility of trial witnesses, because such personal assurances of guilt or vouching for the veracity of witnesses by the state’s representative exceeds the legitimate advocate’s role by improperly inviting the jurors to convict the defendant on a basis other than a neutral independent assessment of the record proof. United States v. Carroll, 26 F.3d 1380, 1387-89 (6th Cir.1994); United States v. Dandy, 998 F.2d 1344, 1353 (6th Cir.1993); Bess, 593 F.2d at 753-56. By contrast, a state’s attorney is free to argue that the jury should arrive at a particular conclusion based upon the record evidence, including the conclusion that the evidence proves the defendant’s guilt. See United States v. Morris, 568 F.2d 396, 402 (5th Cir.1978) (explaining that a government attorney may properly state “I believe that the evidence has shown the defendant’s guilt,” but may not assert “I believe that the defendant is guilty.”). The statement here in controversy constituted an expression of the former, rather than the latter, Moms variety, and thus no prosecutorial misconduct occurred. Second, Caldwell has claimed that Ohio denied him a constitutionally fair trial because the local police neglected to preserve a T-shirt which the victim purportedly wore during the fatal shooting. The petitioner has theorized that gunpowder residue on that shirt would have proved that he had fatally injured the victim from a close range. Although Caldwell testified that Henry wore a T-shirt, some witnesses to post-shooting events testified that they did not recall if Henry had been wearing a" } ]

[ { "docid": "22169563", "title": "", "text": "confronted with a situation where the lives of numerous persons are completely dependent on the capabilities of the job applicant.” 499 F.2d at 861-62. The question raised, therefore, is whether the Weeks requisite of the BFOQ test should be dropped or modified when the safety factor is present. Though we agree with the Greyhound court that the safety of third parties is a factor which cannot be ignored, we believe that this safety factor is already appropriately highlighted within the current framework of the Weeks-Diaz test. In Weeks we held that the employer’s refusal to hire women for a job that required occasional strenuous activity violated the Title VII prohibition of employment discrimination. In rejecting the employer’s assertion of the BFOQ defense, we set out the test for qualification for that defense: an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved. 408 F.2d at 235. However, even when the employer cannot carry this burden, if it demonstrates “that it is impossible or highly impractical to deal with women on an individualized basis, it may apply a reasonable general rule.” 408 F.2d at 235 n. 5. (See note 8, supra.) One method by which the employer can carry this burden is to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant’s membership in the class. The second element of the employer’s burden under the BFOQ defense was set out in Diaz, in which we invalidated the employer’s policy of refusing to hire males for jobs as airline cabin attendants. The statutory requirement that the BFOQ be “reasonably necessary” to the operation of the business was construed to limit qualification for the defense to those cases in which “the essence of the business operation would be undermined by not hiring members of one sex exclusively.” 442 F.2d at 388. We" } ]

[ { "docid": "12048681", "title": "", "text": "a legitimate proxy for the BFOQs of good health, physical strength, endurance and dexterity because substantially all officers over age 60 have a moderately high or higher risk of developing cardiovascular disease, the absence of which is a reasonably necessary BFOQ. In the alternative, the district court held that it would be impossible or impractical to treat officers over 60 on an individualized basis because they must pass initial screening before being tested for certain physical capacities and officers should not be physically tested if they have even mild hypertension or poor cardiac function, conditions that are common in people over 60. In any event, the court found that the cost of screening and testing officers in the highest age category would be prohibitive. This appeal followed. II. Appellants contend that the district court erred in finding that good health, physical fitness, strength and dexterity are bona fide occupational qualifications reasonably necessary to the essence of PSP business. We review factual findings under the clearly erroneous standard. Section 4(a)(1) of the Age Discrimination in Employment Act makes it unlawful for a covered employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (1982). A state or a political subdivision or agency thereof is a covered employer under ADEA. 29 U.S.C. § 630(b) (1982). The proscription against age-based employment discrimination protects individuals between the ages of 40 and 70. 29 U.S.C. § 631(a) (1982). The statute, however, recognizes an exception when the age classification serves “as a necessary proxy for neutral employment qualifications essential to the employer’s business.” Western Air Lines v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 2750, 86 L.Ed.2d 321 (1985). The statute thus tolerates otherwise unlawful age discrimination “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U.S.C. § 623(f)(1) (1982). The BFOQ defense “ ‘[is] in fact meant to be an extremely narrow exception to the general prohibition’" }, { "docid": "15814981", "title": "", "text": "at face value its [“FAA’s] proclaimed standard of necessary minimum qualification.” Id. at 1488. See also E.E.O.C. v. El Paso Natural Gas Co., 626 F.Supp. 182, 186 (W.D.Tex.1985) (defendants employing private corporate pilots are entitled to rely upon expertise of FAA and apply the Age 60 rule to their pilots as a BFOQ). In Hoefelman v. Conservation Com’n of Missouri, 718 F.2d 281 (8th Cir.1983), a state agency instituted a stop flying policy for pilots above the age of 60, but “did no independent research in formulating this policy....” Id. at 282. Instead it relied solely “on studies of the ... (FAA).” Id. Despite this, the Eighth Circuit upheld the district court’s finding that age was a BFOQ for pilots employed by the Missouri Department of Conservation. The Supreme Court has also concluded that the FAA’s Age 60 rule is relevant evidence supporting a commercial airline’s BFOQ defense in an age discrimination action brought by its flight engineers. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 2754, 86 L.Ed.2d 321 (1985). See also El Paso Natural Gas Co., 626 F.Supp. at 186. Case law also supports the introduction and use at trial in the age discrimination context of expert testimony and evidence even if it was not in any way relied upon in implementing the purportedly discriminatory employment policy. In Hoefelman, the defendants “established through expert medical evidence [supplied, in part, by Dr. Earl T. Carter who testified on Hughes’ behalf in the present case] that it had ‘a factual basis for believing that ... some older pilots possess traits precluding safe and efficient job performance unascertainable other than through knowledge of the pilot’s age.’ ” [citations omitted]. Hoefelman, 718 F.2d at 286 (McMillian, J., specially concurring). Based on the testimony of expert witnesses at trial, the district court held, and the Eighth Circuit affirmed, that age was a BFOQ. See also E.E.O.C. v. U. of Texas Health Science Center, 710 F.2d 1091; 1093-94, 1096-97 (5th Cir.1983) (evidence presented at trial in form of expert testimony supports finding that applicants over 45 are unable to perform" }, { "docid": "9877097", "title": "", "text": "an employer must have a “basis in fact,” id. at 335, for its belief that gender discrimination is “reasonably necessary” — not merely reasonable or convenient — to the normal operation of its business. Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir.1971); see also Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 414, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985) (interpreting the BFOQ defense in the Age Discrimination in Employment Act (“ADEA”)). Courts have variously stated that an employer can meet this requirement by showing that “all or substantially all [members of one gender] would be unable to perform safely and efficiently the duties of the job involved,” Johnson Controls, 499 U.S. at 207, 111 S.Ct. 1196 (quoting Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir.1969)); that “it is impossible or highly impractical” to determine on an individualized basis the fitness for employment of members of one gender, Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 676 (9th Cir.1980) (quoting Weeks, 408 F.2d at 235 n. 5); or that “the very womanhood or very manhood of the employee undermines his capacity to perform a job satisfactorily,” Torres v. Wise. Dep’t of Health & Soc. Servs., 859 F.2d 1523, 1528 (7th Cir.1988) (en banc). Second, the Supreme Court has stressed that “in order to qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of the employer’s business.” Johnson Controls, 499 U.S. at 203, 111 S.Ct. 1196 (internal citations and punctuation omitted). Third, this court imposes on employers asserting a BFOQ defense the burden of establishing that no reasonable alternatives exist to discrimination on the basis of sex. Reed, 184 F.3d at 600. In reaching the conclusion that the female gender is a BFOQ for the CO and RUO positions in this case, we are aided by a series of cases that directly address the issue of gender as a BFOQ for corrections officers in female correctional facilities. Reed, 184 F.3d at 600; Robino v. Iranon, 145 F.3d 1109, 1110-11" }, { "docid": "7564756", "title": "", "text": "L.Ed.2d 18 (1983); see also 29 U.S.C. § 621(a)(2) (statement of findings and purpose) (“the setting of arbitrary age limits regardless of potential for job performance has become a common practice”). Not surprisingly, the Supreme Court has read the ADEA to prohibit arbitrary line-drawing— even line-drawing that has a rational basis. “It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993). “Thus the ADEA commands that ‘employers are to evaluate [older] employees ... on their merits and not their age.’ ... The employer cannot rely oh age as a proxy for an employee’s remaining characteristics, such as productivity, but must instead focus on those factors directly.” Id. at 631, 113 S.Ct. at 1706 (quoting Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 422, 105 S.Ct. 2743, 2756, 86 L.Ed.2d 321 (1985)). The ADEA accordingly puts mandatory retirement ages to a much more rigorous test than the Equal Protection Clause. A rational basis does not suffice. Criswell, 472 U.S. at 421, 105 S.Ct. at 2755. Rather, “[u]nless an employer can establish a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position, the age selected for mandatory retirement less than 70 must be an age at which it is highly impractical for the employer to [e]nsure by individual testing that its employees will have the necessary qualifications for the job.” Id. at 422-23, 105 S.Ct. at 2756; see also Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir.1977) (finding a mandatory maximum hiring age violative of ADEA, but not of the Equal Protection Clause). Mandatory age limits are not the only illustration of the gulf between the elderly’s rights under the Equal Protection Clause and the elderly’s rights under the ADEA. State action that has a disparate impact on old workers probably does not violate the Equal Protection Clause, but it can violate the ADEA. Compare" }, { "docid": "9877111", "title": "", "text": "the housing units will decrease the likelihood of sexual abuse. As we have emphasized, the MDOC’s decision receives “substantial weight,” Torres, 859 F.2d at 1532, and, given the severity of the harm to sexually abused inmates, the MDOC may set “more stringent” qualifications for officer positions. Harriss v. Pan Am. World Airtways, Inc., 649 F.2d 670, 676 (9th Cir.1980) (quoting Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 236 (5th Cir.1976)). As the data cited above shows, some male officers possess a trait precluding safe and efficient job performance — a proclivity for sexually abusive conduct — that cannot be ascertained by means other than knowledge of the officer’s gender, and thus gender was “a legitimate proxy” for a safety-related job qualification. Cf. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 414-15, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985) (applying “legitimate proxy” standard in an ADEA case). As the Ninth Circuit found in analogous circumstances, MDOC’s decision to designate certain positions as female-only was “a reasonable response to concerns about inmate privacy and allegations of abuse by male [officers].” Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir.1998). The district court erred in concluding that the safety interests of female inmates did not support a BFOQ. The court reasoned that the MDOC’s plan was not rea sonably necessary because the MDOC had only recently implemented the reforms mandated by the USA and Nunn agreements, because improper conduct had decreased since the implementation of the reform, and because only a minuscule percentage of male officers sexually abuse inmates. Everson, 222 F.Supp.2d at 894-95. Further, the court relied on the lack of effort “to enhance pre-employment screening of new CO’s and RUO’s to lessen the likelihood of employing high risk male CO’s and RUO’s in the female prisons.” Id. at 895. The district court applied too restrictive a standard in rejecting the MDOC’s safety-based argument. Apparently, the court thought that the MDOC could establish a BFOQ only by showing that “all, or substantially all, males are not able to perform safely and efficiently the duties of a CO and RUO" }, { "docid": "22967487", "title": "", "text": "may, in an appropriate case, be a BFOQ if the age criterion is “reasonably necessary to the normal operation of the particular business,” and in such a case, the age criterion is not violative of the Act. 29 U.S.C. § 623(f)(1). A BFOQ must be reasonably necessary to the essence of the business and the employer must have a factual basis for believing all or substantially all persons within the excluded class would be unable to perform the job’s duties safely and efficiently or that it would be impossible or impracticable to deal with persons over the age limit on an individualized basis. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 416-17, 105 S.Ct. 2743, 2752-53, 86 L.Ed.2d 321 (1985) (adopting test set forth in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 227 (5th Cir.1976)); Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir.1977). However, “[b]efore a characteristic can be a reasonably necessary BFOQ, it must be a trait that the employer at least attempts to require of employees of all ages.” EEOC v. Pennsylvania, 829 F.2d 392, 396 (3d Cir.1987). The BFOQ defense admits of the discriminatory nature of the qualification and proceeds to justify the prima facie violation by its application to certain exigent occupational circumstances. The Third Circuit, as well as the Supreme Court, has recognized that a BFOQ is an affirmative defense, the assertion of which shifts the burden of proof to the defendant to justify its hiring policy. See Criswell, supra, 472 U.S. at 413-17, 105 S.Ct. at 2751-53 (citing with approval Usery v. Tamiami Trail Tours, 531 F.2d at 227; EEOC v. Pennsylvania, 768 F.2d 514, 518 (3d Cir.1985) (employer’s burden of proof to make particularized factual showing with respect to all elements of BFOQ defense) (citing Johnson v. Mayor of Baltimore, 472 U.S. 353, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985)). 3. Business Necessity A defendant may also defend against ADEA claims by showing the challenged practice is justified on the basis of business necessity. “The defendants’ burden of demonstrating business necessity is a heavy one. (citation omitted) They must" }, { "docid": "9877096", "title": "", "text": "fide occupation qualification, or BFOQ. Id. The BFOQ defense countenances gender-based discrimination “in those certain instances where ... sex ... is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e) (2001). It is true that the BFOQ defense is written narrowly, and is to be read narrowly. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 201, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). Moreover, the burden is on an employer to establish a BFOQ defense. Grant, 908 F.2d at 1306. Courts have offered various formulations of the BFOQ defense, Dothard v. Rawlinson, 433 U.S. 321, 333, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), and from these decisions we distill the principles that lead us to the conclusion that the defense has been established in this case. First, “it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes,” id., and an employer must have a “basis in fact,” id. at 335, for its belief that gender discrimination is “reasonably necessary” — not merely reasonable or convenient — to the normal operation of its business. Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir.1971); see also Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 414, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985) (interpreting the BFOQ defense in the Age Discrimination in Employment Act (“ADEA”)). Courts have variously stated that an employer can meet this requirement by showing that “all or substantially all [members of one gender] would be unable to perform safely and efficiently the duties of the job involved,” Johnson Controls, 499 U.S. at 207, 111 S.Ct. 1196 (quoting Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir.1969)); that “it is impossible or highly impractical” to determine on an individualized basis the fitness for employment of members of one gender, Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 676 (9th Cir.1980) (quoting Weeks," }, { "docid": "23110642", "title": "", "text": "cogent and well-reasoned opinion insofar as it relates to the other two prongs of the preliminary injunction test and focus on whether the court correctly presaged (a) plaintiffs’ likelihood of success at trial, and (b) the potential for irreparable harm to plaintiffs in the absence of an injunction. III. Discussion A. Plaintiffs’ Likelihood of Success Under the ADEA, it is “unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ... because of such individual’s age....” 29 U.S.C. § 623(a)(1). The ADEA contains an “escape clause,” however, which allows employers some limited flexibility to take age into consideration in business decisions. Commonly referred to as the “BFOQ exception,” the clause allows employers “to take any action otherwise prohibited under [the statute] ... where age is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business....” 29 U.S.C. § 623(f)(1). As noted by the Supreme Court, this clause is “‘an extremely narrow exception to the general prohibition’ of age discrimination contained in the ADEA.” Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 412, 105 S.Ct. 2743, 2751, 86 L.Ed.2d 321 (1985) (quoting Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977)). In Criswell, the Court enunciated a two-pronged test for courts to use in discerning the width of the “extremely narrow” BFOQ exception. Id. at 412-20, 105 S.Ct. at 2750-55 (adopting the two-part test outlined in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 235-36 (5th Cir.1976)). Under the first prong, the employer must be able to show that the qualification at issue is “reasonably necessary to the essence of [its] business....” Criswell, 472 U.S. at 413, 105 S.Ct. at 2751 (quoting Usery, 531 F.2d at 236) (emphasis in original); EEOC v. City of East Providence, 798 F.2d 524, 528 (1st Cir.1986) (quoting Criswell). The second prong requires that the employer justify its use of age as a proxy for that qualification. Criswell, 472 U.S. at 414, 105 S.Ct. at 2751; City of East Providence, 798" }, { "docid": "12048678", "title": "", "text": "OPINION OF THE COURT SEITZ, Circuit Judge. Lieutenant Otto J. Binker and the Equal Employment Opportunity Commission (EEOC) appeal from the final order of the district court denying their motion for a permanent injunction. This court has jurisdiction under 28 U.S.C. § 1291 (1982). I. Pennsylvania law requires all state police officers to retire at age sixty. 71 P.S. § 65(d) (Purdon Supp.1987). Lieutenant Binker filed this action to prevent his imminent retirement from the Pennsylvania State Police (PSP) pursuant to the mandatory retirement law. Binker claimed that the law violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1982) (ADEA), and the equal protection clause of the United States Constitution. U.S. Const, amend. XIV. Shortly thereafter, the EEOC brought an action seeking injunctive relief and backpay for all persons adversely affected by the law. The actions were consolidated in May 1983. In their defense, the Commonwealth and the PSP argued that the age limitation was a lawful bona fide occupational qualification (BFOQ). In October 1984, the district court entered final judgment in favor of defendants. EEOC v. Pennsylvania, 596 F.Supp. 1333 (M.D.Pa.1984). The district court determined that “the PSP is a paramilitary organization where the mandatory retirement age is reasonably necessary to the operation of a safe and efficient law enforcement organization.” Id. at 1343. Further, the court found that substantially all PSP officers over age 60 cannot safely and efficiently perform the necessary physical duties of the job and that it would be impractical to determine which officers could perform the job of PSP trooper. Binker and the EEOC appealed the decision. Prior to oral argument, the Supreme Court decided Johnson v. City of Baltimore, 472 U.S. 353, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985), and Western Air Lines v. Criswell, 472 U.S. 400,105 S.Ct. 2743, 86 L.Ed.2d 321 (1985). Criswell, in particular, explained the parameters of the BFOQ defense and adopted the standard developed by the Fifth Circuit in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). Because it appeared that the district court had assumed that good health" }, { "docid": "12048683", "title": "", "text": "of age discrimination.” Criswell, supra, 105 S.Ct. at 2751, quoting Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977). In Criswell, the Supreme Court adopted a two-prong test for determining whether an employer has established the BFOQ defense. First, the employer must demon strate that the qualification used to justify the age requirement is reasonably necessary to the essence of its business. Criswell, supra, 105 S.Ct. at 2751. Second, the employer must show that it is compelled to rely on age as a proxy for this qualification by establishing either that all or substantially all adults over a particular age lack the qualification or that it is impossible or impractical to deal with the older employees on an individualized basis. Id. While the ADEA does not require perfect monitoring and maintenance of a particular qualification at all age levels, it does bar selective age-based enforcement of health and fitness requirements. Cf. Trans World Airlines Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985) (if airline grants some disqualified captains the privilege of bumping less senior flight engineers, it may not deny this opportunity to others because of their age). The PSP admitted that it presently has no mandatory minimum fitness standards and that its new maintenance program is only “evolving” towards such standards. As to the first prong of the BFOQ defense, the district court found that good health, physical fitness, strength, and dexterity are qualifications reasonably necessary to the essence of PSP business, namely, safety. The court did not, however, indicate what minimum level of these traits is necessary to the performance of state police trooper duties. The district court found that in 1982 the PSP began to develop a health and physical fitness training program for its members. The research phase is complete and the program is now in the developmental phase. The district court further found: In the future, the department will undertake quarterly assessments of the physical fitness of its members, will write exercise prescriptions for each member, and will provide education in stress management," }, { "docid": "23110643", "title": "", "text": "discrimination contained in the ADEA.” Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 412, 105 S.Ct. 2743, 2751, 86 L.Ed.2d 321 (1985) (quoting Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977)). In Criswell, the Court enunciated a two-pronged test for courts to use in discerning the width of the “extremely narrow” BFOQ exception. Id. at 412-20, 105 S.Ct. at 2750-55 (adopting the two-part test outlined in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 235-36 (5th Cir.1976)). Under the first prong, the employer must be able to show that the qualification at issue is “reasonably necessary to the essence of [its] business....” Criswell, 472 U.S. at 413, 105 S.Ct. at 2751 (quoting Usery, 531 F.2d at 236) (emphasis in original); EEOC v. City of East Providence, 798 F.2d 524, 528 (1st Cir.1986) (quoting Criswell). The second prong requires that the employer justify its use of age as a proxy for that qualification. Criswell, 472 U.S. at 414, 105 S.Ct. at 2751; City of East Providence, 798 F.2d at 528. Justification can be accomplished in one of two ways. The employer can show that it “ ‘had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all persons over the age qualification[ ] would be unable to perform ... the duties of the job involved.’ ” Criswell, 472 U.S. at 414, 105 S.Ct. at 2751-52 (quoting Usery, 531 F.2d at 235) (emphasis added). Alternatively, the employer can establish that “it is ‘impossible or highly impractical’ to deal with the older employees on an individualized basis.” Criswell, 472 U.S. at 414, 105 S.Ct. at 2752 (quoting Usery, 531 F.2d at 235). As support for their contention that the district court erred in determining plaintiffs’ likelihood of success under the ADEA, defendants make the following two arguments: (1) controlling precedent in this circuit forecloses plaintiffs’ claims, see EEOC v. Trabucco, 791 F.2d 1 (1st Cir.1986) (“Trabucco II”); Mahoney v. Trabucco, 738 F.2d 35 (1st Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984) (“Trabucco" }, { "docid": "6252419", "title": "", "text": "who are disabled will suffer during the time they are disabled from the same invidious discrimination that has haunted racial minorities and women. The ADA reflects Congress’s finding that society has the ability to, and has historically, “tended to isolate and segregate individuals with disabilities.” 42 U.S.C. § 12101. There are other reasons as well to conclude that the ADA is a permissible exercise of Congress’s section 5 power. Apart from the salient differences between age and disability as bases for categorization, the two statutes fare quite differently under the proportionality analysis required by Boeme and Kimel. The broad sweep of the ADEA caused the Supreme Court to find that it was not a proportional response to the problem of age discrimination. The ADEA prohibits all employment discrimination on the basis of age against persons in the protected class (those above the age of 40). 29 U.S.C. § 623(a)(1). The only tempering of this rule appears in the statutory rules allowing an employer to justify age-based distinctions if it shows either a substantial basis for believing that all or nearly all employees above a given age lack the qualifications required for the position or that reliance on the age classification is necessary because individual testing for qualifications is highly impractical. Kimel, 120 S.Ct. at 647 (citing Western Air Lines v. Criswell, 472 U.S. 400, 422, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985)). The EEOC’s implementing regulations, as well as cases decided under the ADEA, make it clear that these exceptions were intended to be narrow ones. See 29 C.F.R. § 1625.6(a); see also Western Air Lines, 472 U.S. at 422, 105 S.Ct. 2743. The ADA adopts a more nuanced approach to the problem of disability discrimination. An employer is entitled to treat a disabled person differently — indeed, even to deny employment to the person on that basis — if there are no reasonable accommodations that will permit the individual to do the job and she cannot handle the job without accommodations. 42 U.S.C. § 12113.- See, e.g., Stewart v. County of Brown, 86 F.3d 107, 112 (7th Cir.1996); Pond" }, { "docid": "6252420", "title": "", "text": "believing that all or nearly all employees above a given age lack the qualifications required for the position or that reliance on the age classification is necessary because individual testing for qualifications is highly impractical. Kimel, 120 S.Ct. at 647 (citing Western Air Lines v. Criswell, 472 U.S. 400, 422, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985)). The EEOC’s implementing regulations, as well as cases decided under the ADEA, make it clear that these exceptions were intended to be narrow ones. See 29 C.F.R. § 1625.6(a); see also Western Air Lines, 472 U.S. at 422, 105 S.Ct. 2743. The ADA adopts a more nuanced approach to the problem of disability discrimination. An employer is entitled to treat a disabled person differently — indeed, even to deny employment to the person on that basis — if there are no reasonable accommodations that will permit the individual to do the job and she cannot handle the job without accommodations. 42 U.S.C. § 12113.- See, e.g., Stewart v. County of Brown, 86 F.3d 107, 112 (7th Cir.1996); Pond v. Michelin North America, Inc., 183 F.3d 592, 596 (7th Cir.1999); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir.1997). Thus, while an employer discriminating on the basis of age must demonstrate that it would be “highly impractical” not to do so, an employer making distinctions on the basis of disability need only show that “reasonable steps” of accommodation, such as modifying work schedules, training materials, facilities, or policies, will not work. See 42 U.S.C. §§ 12113, 12111. The incorporation of a reasonableness standard in the duty to accommodate, which itself modifies the duty not to discriminate on the basis of disability, is essentially a legislative incorporation of the proportionality test required under the Constitution. It also illustrates, contrary to the majority’s suggestion, that the duty to accommodate is not a command to give “special” treatment; instead, it spells out the way that discrimination is to be avoided. I would therefore find that the ADA meets the first part of the Kimel analysis. The second question under Kimel requires us to consider whether" }, { "docid": "12048682", "title": "", "text": "Act makes it unlawful for a covered employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (1982). A state or a political subdivision or agency thereof is a covered employer under ADEA. 29 U.S.C. § 630(b) (1982). The proscription against age-based employment discrimination protects individuals between the ages of 40 and 70. 29 U.S.C. § 631(a) (1982). The statute, however, recognizes an exception when the age classification serves “as a necessary proxy for neutral employment qualifications essential to the employer’s business.” Western Air Lines v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 2750, 86 L.Ed.2d 321 (1985). The statute thus tolerates otherwise unlawful age discrimination “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U.S.C. § 623(f)(1) (1982). The BFOQ defense “ ‘[is] in fact meant to be an extremely narrow exception to the general prohibition’ of age discrimination.” Criswell, supra, 105 S.Ct. at 2751, quoting Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977). In Criswell, the Supreme Court adopted a two-prong test for determining whether an employer has established the BFOQ defense. First, the employer must demon strate that the qualification used to justify the age requirement is reasonably necessary to the essence of its business. Criswell, supra, 105 S.Ct. at 2751. Second, the employer must show that it is compelled to rely on age as a proxy for this qualification by establishing either that all or substantially all adults over a particular age lack the qualification or that it is impossible or impractical to deal with the older employees on an individualized basis. Id. While the ADEA does not require perfect monitoring and maintenance of a particular qualification at all age levels, it does bar selective age-based enforcement of health and fitness requirements. Cf. Trans World Airlines Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985) (if" }, { "docid": "22433011", "title": "", "text": "Inc., 499 U.S. at 206, 111 S.Ct. 1196, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 112, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), which the Federal Rules of Civil Procedure requires to be specifically pleaded. Fed.R.Civ.P. 8(c). Failure to plead an affirmative defense therefore results in a waiver of that defense. See Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 235 (7th Cir.1991). Since Yellow Cab did not specifically plead the BFOQ defense in its motion for summary judgment, Yellow Cab effectively waived this defense. More importantly, even if Yellow Cab were permitted to raise the BFOQ defense in district court, the defense would nonetheless fail as a matter of law. The majority believes that to establish a BFOQ defense, Yellow Cab need only prove that it terminated Mr. Enlow temporarily and not in bad faith. The majority repeatedly states that according to Yellow Cab, the termination of Mr. Enlow was to be temporary. The opinion does not explain, however, why this would make a difference. The ADEA prohibits age discrimination “with respect to ... compensation, terms, conditions, or privileges of employment ... ”. 29 U.S.C. § 623(a)(1). It does not only prohibit “permanent” termination. Thus, although this fact is contested, it is not a material fact requiring us to remand the case. The Supreme Court has established that the BFOQ defense is a narrow exception to the ADEA that only applies in special situations. See Johnson Controls, Inc., 499 U.S. at 201, 111 S.Ct. 1196; Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 412, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985); Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). In particular, the BFOQ defense applies only in situations where an employer who discriminates on the basis of age demonstrates that “age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U.S.C. § 623(f)(1). Thus, one of the elements that a defendant invoking the BFOQ defense must satisfy is that its age-based discrimination relates to a “particular business,” which the Supreme Court" }, { "docid": "9877138", "title": "", "text": "Compare 29 U.S.C. § 623(f)(1) (2001) (\"It shall not be unlawful for an employer ... to take any action otherwise prohibited ... where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business .... ”), with 42 U.S.C. § 2000e-2(e) (\"[I]t shall not be an unlawful employment practice for an employer to hire and employ employees ... on the basis of ... sex ... in those certain instances where ... sex .. is a bona fide occupational reasonably necessary to the normal operation of that particular business or enterprise.... ”). In fact, the Supreme Court has observed that Congress borrowed the concept and statutory language from Title VII's BFOQ defense in composing the ADEA’s BFOQ defense, and the Court has used Title VII and ADEA case law interchangeably. Johnson Controls, 499 U.S. at 201, 111 S.Ct. 1196; Criswell, 472 U.S. at 412, 416, 105 S.Ct. 2743. The plaintiffs' arguments against applying the “ADEA” standard in Title VII cases — the plaintiffs do not acknowledge the lineage of the \"impossible or highly impractical” standard — are not persuasive. The Court has read the ADEA’s BFOQ defense, \"which tracks the BFOQ provision in Title VII, just as narrowly.” Johnson Controls, 499 U.S. at 201, 111 S.Ct. 1196. The Johnson Controls decision concerned whether the employer’s asserted BFOQ related to the “essence” of the employer’s business, and did not purport to hold that an employer can establish \"reasonable necessity” only by showing that \"all or substantially all woman would be unable to perform safely and efficiently the duties of job involved.” Johnson Controls, 499 U.S. at 206-07, 111 S.Ct. 1196 (internal quotations omitted). The plaintiffs fail to identify the \"considerations unique to the aging process” that require a departure from the usual practice of interpreting Title VII and the ADEA in identical fashion. In short, the BFOQ defense has not been reduced to a single, universally-applicable test. The “all or substantially all” and \"impossible or highly impractical” standards are, to use the language of Dothard, 433 U.S. at 333, 97 S.Ct. 2720, \"formulations” of the \"reasonable" }, { "docid": "22967486", "title": "", "text": "one member of the sample group. Diane Murray, an information systems marketing representative at BSG, Dallas, Texas, was forty-four at the time of her discharge. She had an annual salary of $20,280 plus commissions. Murray contends she was denied territorial assignments and that her dismissal was based upon her age. Xerox, however, contests any such claim, asserting Murray was terminated with good cause for flagrant disregard of company interests where she allegedly submitted false disability claims. Xerox further contends Murray chose her sales territory and that her replacement had the highest sales performance in the district. (Compendia at 41.) Xerox also asserts the claims of Mongiovi and Murray are outside the class time period since separation occurred on July 15, 1983 and April 30, 1984 respectively. (Compendia at 40, 41.) 2. Bona Fide Occupational Qualification The defense of a bona fide occupational qualification (“BFOQ”) is applicable where age is made an express employment criterion, e.g., where a job announcement specifies a position is only open to persons of a certain age. The ADEA provides age may, in an appropriate case, be a BFOQ if the age criterion is “reasonably necessary to the normal operation of the particular business,” and in such a case, the age criterion is not violative of the Act. 29 U.S.C. § 623(f)(1). A BFOQ must be reasonably necessary to the essence of the business and the employer must have a factual basis for believing all or substantially all persons within the excluded class would be unable to perform the job’s duties safely and efficiently or that it would be impossible or impracticable to deal with persons over the age limit on an individualized basis. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 416-17, 105 S.Ct. 2743, 2752-53, 86 L.Ed.2d 321 (1985) (adopting test set forth in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 227 (5th Cir.1976)); Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir.1977). However, “[b]efore a characteristic can be a reasonably necessary BFOQ, it must be a trait that the employer at least attempts to require of employees of all ages.”" }, { "docid": "9877137", "title": "", "text": "the aging process. The plaintiffs' argument fails for a number of reasons. Most fundamentally, the “impossible or highly impractical” standard is not solely an ADEA standard. This language appears to have originated in a Title VII case, Weeks v. So. Bell Tel. & Tel. Co., 408 F.2d 228, 235 n. 5 (5th Cir.1969), and subsequently to have been applied in ADEA cases. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 414 n. 19, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985). At least two circuits have utilized this language in Title VII cases. Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 676 (9th Cir.1981); Weeks, 408 F.2d at 235 n. 5. Moreover, even if the standard had not yet been applied in Title VII cases, precedent suggests that it should be. “The provisions of the ADEA generally receive an identical interpretation to corresponding provisions of Title VII,” Lilley v. BTM Corp., 958 F.2d 746, 750 n. 2 (6th Cir.1992), and Title VII and the ADEA define the BFOQ defense in materially indistinguishable terms. Compare 29 U.S.C. § 623(f)(1) (2001) (\"It shall not be unlawful for an employer ... to take any action otherwise prohibited ... where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business .... ”), with 42 U.S.C. § 2000e-2(e) (\"[I]t shall not be an unlawful employment practice for an employer to hire and employ employees ... on the basis of ... sex ... in those certain instances where ... sex .. is a bona fide occupational reasonably necessary to the normal operation of that particular business or enterprise.... ”). In fact, the Supreme Court has observed that Congress borrowed the concept and statutory language from Title VII's BFOQ defense in composing the ADEA’s BFOQ defense, and the Court has used Title VII and ADEA case law interchangeably. Johnson Controls, 499 U.S. at 201, 111 S.Ct. 1196; Criswell, 472 U.S. at 412, 416, 105 S.Ct. 2743. The plaintiffs' arguments against applying the “ADEA” standard in Title VII cases — the plaintiffs do not acknowledge the lineage of the" }, { "docid": "22433012", "title": "", "text": "respect to ... compensation, terms, conditions, or privileges of employment ... ”. 29 U.S.C. § 623(a)(1). It does not only prohibit “permanent” termination. Thus, although this fact is contested, it is not a material fact requiring us to remand the case. The Supreme Court has established that the BFOQ defense is a narrow exception to the ADEA that only applies in special situations. See Johnson Controls, Inc., 499 U.S. at 201, 111 S.Ct. 1196; Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 412, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985); Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). In particular, the BFOQ defense applies only in situations where an employer who discriminates on the basis of age demonstrates that “age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U.S.C. § 623(f)(1). Thus, one of the elements that a defendant invoking the BFOQ defense must satisfy is that its age-based discrimination relates to a “particular business,” which the Supreme Court defined in Thurston as the particular job from which the protected individual is excluded. 469 U.S. at 122, 105 S.Ct. 613. In Thurston, more specifically, the Supreme Court held that Trans World Airlines’ (“TWA’s”) discriminatory transfer policy was not permissible under § 4(f)(1) because age is not a BFOQ for the “particular” position of flight engineer. Id. The transfer policy explicitly allowed airplane captains displaced for reasons other than age to “bump” less senior flight engineers. Id. Those captains disqualified from their position after reaching the age of 60, however, were denied the transfer privilege altogether because of their age. Id. The Court determined that a BFOQ defense was meritless because age is not a BFOQ for the position of flight engineer. Id. at 123, 105 S.Ct. 613. TWA had actually employed at least 148 flight engineers who were over 60 years old, thereby defeating the contention that captains over 60 years old were too old or incapable of performing as flight engineers. Id. n. 18. Here, too, Yellow Cab’s discriminatory insurance policy is not" }, { "docid": "12048679", "title": "", "text": "judgment in favor of defendants. EEOC v. Pennsylvania, 596 F.Supp. 1333 (M.D.Pa.1984). The district court determined that “the PSP is a paramilitary organization where the mandatory retirement age is reasonably necessary to the operation of a safe and efficient law enforcement organization.” Id. at 1343. Further, the court found that substantially all PSP officers over age 60 cannot safely and efficiently perform the necessary physical duties of the job and that it would be impractical to determine which officers could perform the job of PSP trooper. Binker and the EEOC appealed the decision. Prior to oral argument, the Supreme Court decided Johnson v. City of Baltimore, 472 U.S. 353, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985), and Western Air Lines v. Criswell, 472 U.S. 400,105 S.Ct. 2743, 86 L.Ed.2d 321 (1985). Criswell, in particular, explained the parameters of the BFOQ defense and adopted the standard developed by the Fifth Circuit in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). Because it appeared that the district court had assumed that good health and physical fitness are reasonably necessary job qualifications, we remanded this action for reconsideration and additional particularized factual findings in light of the Supreme Court’s then recent pronouncements. EEOC v. Pennsylvania, 768 F.2d 514 (3d Cir.1985). On remand, the district court allowed the parties to present additional testimony and evidence. The district court again ruled in favor of defendants. EEOC v. Pennsylvania, 645 F.Supp. 1545 (M.D.Pa.1986). It found that good health, physical fitness, strength, and dexterity are reasonably necessary to the essence of PSP business. The court determined that eleven physical dimensions are required to perform the job of state police officer: eye-hand coordination, manual dexterity, finger dexterity, reaction time, absolute strength, relative strength, absolute power, relative power, aerobic endurance, anaerobic-aerobic endurance, and absolute muscular endurance. The district court further found that there is a dramatic age-related effect on these capacities, and that there must be extensive and expensive medical screening for hidden coronary problems in officers over 60 before they can be tested for these capacities. The district court held, therefore, that age was" } ]

[ { "docid": "12914035", "title": "", "text": "be avoided only by enforcement of the promise.” United of Omaha v. Hieber, 698 N.E.2d 869, 876 (Ind.App.1998) (citing, Lightle v. Harcourt Mgmnt. Co., 634 N.E.2d 858, 860 (Ind.App.1994) trans. denied). “When estoppel is relied upon as an element of a cause of action, it must be pleaded with particularity, with every essential fact set forth, since nothing can be supplied by inference or intendment.” Holloway v. Giganti, Inc., 540 N.E.2d 97, 100 (Ind.App.1989). Thus, a claim of promissory estoppel must be pled with particularity. See, NIPSCO v. Dabagia, 721 N.E.2d 294, 299 (Ind.App.1999); Bee Window, Inc. v. Turman, 716 N.E.2d 498, 501 (Ind.App.1999). In the present matter, Norwest did not plead a claim of promissory estoppel in its complaint—particularly or otherwise. Instead, it addressed the claim in its response brief and, apparently recognizing the omission after it was raised in Federal Kemper’s motion to strike, filed a motion for leave to amend its complaint on June 2, 2000. That is too late in the proceedings particularly since Norwest has failed to adequately explain its delay in seeking leave to amend. “ ‘A plaintiff may not amend [its] complaint through arguments in [its] brief in opposition to a motion for summary judgment.’” Speer v. Rand McNally & Co., 123 F.3d 658, 665 (7th Cir.1997) (quoting, Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996). Indeed, in Auston v. Schubnell, 116 F.3d 251, 255 (7th Cir.1997), the Seventh Circuit held that where plaintiff “did not include the promissory estoppel claim in his complaint or his amended complaint, adding it only at the summary judgment stage[,] [t]his is too late in the day to be adding new claims.” The rationale for such holdings has been explained by the Seventh Circuit in the following manner: Seeking to amend one’s complaint when it appears that the current one is a sure loser is not unusual; nor is the denial of leave to file an amended complaint. Our recent decision in Sanders, 56 F.3d at 773 (citations omitted), recites the litany of instances in which we affirmed a district court’s denial of leave" } ]

[ { "docid": "6084875", "title": "", "text": "its position because it is dissatisfied with the jury’s verdict. The doctrine of judicial estoppel prevents such a change in position. B Gemplus asserts that because Hu-metrix invoked equitable estoppel to bar Gemplus from raising the statute of frauds as a defense to Humetrix’s breach of contract claims, the district court was required as a matter of law to limit damages on those claims “the amount expended in reliance on the unenforceable promise ... not ... the profits [it] hoped to obtain as a result.” We review de novo the district court’s determination that as a matter of law Humetrix’s invocation of equitable es-toppel did not prevent it from recovering lost profits. See United States v. Sims (In re Feiler), 218 F.3d 948, 951 (9th Cir.2000). The district court properly determined that Humetrix is not barred from recovering lost profits merely because it invoked equitable estoppel. Gemplus’s argument conflates promissory estoppel with equitable estop-pel. As we have observed, however, promissory estoppel and equitable estoppel are distinct concepts with distinct uses and effects. See Jablon v. United States, 657 F.2d 1064, 1068 (9th Cir.1981). “[Pjromis-sory estoppel is used to create a cause of action, whereas equitable estoppel is used to bar a party from raising a defense or objection it otherwise would have.... Promissory estoppel is a sword, and equitable estoppel is a shield.” Id. Humetrix used equitable estoppel to bar Gemplus from raising the statute of frauds as a defense to Humetrix’s claims for breach of the Sales Agreement and the Partnership Agreement. See Housley v. Haywood (Estate of Housley), 56 Cal.App.4th 342, 65 Cal.Rptr.2d 628, 638 (Ct.App.1997) (“[E]q-uitable estoppel may apply to avoid the statute[ ] of fraud[s] and to make an oral agreement enforceable.... ”). That Humetrix used equitable estoppel to defeat Gemplus’s statute of frauds defense has no bearing on the damages Hu-metrix may recover. The kind of damages a party may recover is determined by the kind of claim it brings and by the evidence it adduces. Humetrix’s claims against Gemplus are for breach of contract. That was the theory under which Humetrix brought suit, and" }, { "docid": "6057210", "title": "", "text": "the estoppel did, in fact, rely upon the misrepresentation to his or her detriment. Transamerica Ins. Group v. Paul, 267 N.W.2d 180, 183 (Minn.1978). Here, Mylan asserts that USL cannot identify any misrepresentation that Mylan made to it. In response, USL insists that Mylan made a known misrepresentation when it informed USL that a formal written contract was not necessary to consummate their Cimetidine requirements contract. As a result, USL argues that equitable estoppel should be applied so as to bar Mylan from raising its Statute of Frauds defense. While, under Minnesota law, equitable estoppel may be asserted to bar a defense premised upon the Statute of Frauds, see W.H. Barber Co. v. McNamaroAVivant Contracting Co., supra at 357, we have already concluded that the confirmation letter of April 29, 1994, has satisfied any Statute of Frauds, and we have recommended that USL be granted Summary Judgment as to that defense. Therefore, equitable estoppel has no further application in this case, and we recommend that Mylan’s Motion for Summary Judgment be granted. 7) Whether USL Can Only Recover Its Reliance Damages Through Promissory Estoppel. According to Mylan, if USL should be successful in its promissory estoppel claim, then it should be limited to a recovery of only its reliance damages, and Mylan seeks a ruling to that effect. a) Standard of Review. Under the doctrine of promissory estoppel, a clear and definite promise, which is expected and intended to induce definite action by the promisee, and which does induce that action, is binding, if injustice can be avoided only by enforcing the promise. Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992). Contrary to Mylan’s assertion, however, a Court “is not required under Minnesota law to limit the remedy in promissory estoppel cases to out-of-pocket expenses.” Walser v. Toyota Motor Sales, U.S.A., Inc., 43 F.3d 396, 402 (8th Cir.1994) [emphasis in original]. Instead, a Court “is free to exercise its discretion in selecting the [remedy] which it believes best serves the interests of justice.” Id. Indeed, in Cohen v. Cowles Media Co., supra at 392, the Court specifically approved" }, { "docid": "20259460", "title": "", "text": "the statute of frauds because the services were fully explained by the salary without supposing any additional consideration.” Furthermore, this partial-performance exception to the statute of frauds applies only “if denial of performance would amount to a virtual fraud,” which requires “strong evidence establishing the existence of an agreement and its terms, [that] the party acting in reliance on the contract has suffered a substantial detriment for which he has no adequate remedy, and the other party, if permitted to plead the statute, would reap an unearned benefit.” Sullivan has not demonstrated that he has “suffered a substantial detriment for which he has no adequate remedy.” Nor has he alleged facts showing that Leor will “reap an unearned benefit” if the statute of frauds is applied. More importantly, even if Sullivan could prove that the partial-performance exception applies, he would be entitled only to reliance damages, and not the contract damages he seeks. V Sullivan argues that promissory estoppel, equitable estoppel, and “detrimental reliance” bar Leor from invoking the statute of frauds. “If the elements of promissory or equitable estoppel are met, then a promisee may enforce an otherwise unenforceable contract.” Under Texas law, promissory estoppel requires that “the agreement that is the subject of the promise must comply with the statute of frauds. That is, the agreement must be in writing at the time of the oral promise to sign it.” The district court concluded that Sullivan had failed to allege all the elements necessary to bring his claim within the doctrine of promissory estoppel We assume without deciding that Sullivan’s amended complaint arguably alleged that Leor agreed to sign a specific written agreement. His promissory estoppel claim nevertheless fails because he affirmatively asserted in his response to Leor’s motion to dismiss that no written document was finalized, rendering him unable to satisfy the elements of promissory estoppel. Sullivan cannot now change his position. This admission bars Sullivan from taking a contrary position on appeal. With regard to equitable estoppel, some Texas courts have “refus[ed] to recognize [equitable estoppel] as a distinct cause of action separate from promissory estoppel" }, { "docid": "15441581", "title": "", "text": "what steps it took that related to the specific promise on which Auston relies, which amounts to a guarantee of nontransferability and permanent Baylor status until he finished law school. Shortly after he started law school, his problems with the leaves of absence began, and the Hospital’s conduct throughout that time period indicated that it did not believe itself to be bound by any such commitment. The non-written nature of Auston’s contract is not its worst flaw. The more fundamental problem is the lack of consideration underlying Schubnell’s statements, assuming that he was empowered to act as the agent for the Hospital. As the district court said, it is hard to conceive of a rationale that “would somehow make Auston’s deferral of the first year of his law school education a benefit for the Hospital.” Auston certainly does not provide any help to the court in answering this question; he provided no citations or evidence either before the district court or here to answer the Hospital’s assertion that the contract was not supported by consideration. This is not enough to overcome the presumption in Illinois law that one is an employee at will. See Hartlein v. Illinois Power Co., 151 Ill.2d 142,176 Ill.Dec. 22, 30, 601 N.E.2d 720, 728 (1992); Hanna v. Marshall Field & Co., 279 Ill.App.3d 784, 216 Ill.Dec. 283, 287, 665 N.E.2d 343, 347 (1st Dist.1996). Auston also fails on his claims of promissory estoppel and tortious interference with his employment contract (brought only against Schubnell). He did not include the promissory estoppel claim in his complaint or his amended complaint, adding it only at the summary judgment stage. This is too late in the day to be adding new claims. Furthermore, Auston’s unilateral expectation of job security cannot be enough to bind the Hospital, in the absence of some showing that it was receiving a particular benefit from the commitment to employ him in the .6 FTE Baylor position throughout his law school career. Auston’s claim against Schubnell for tortious interference with his employment contract fails as a result of our finding that no valid and" }, { "docid": "15441582", "title": "", "text": "This is not enough to overcome the presumption in Illinois law that one is an employee at will. See Hartlein v. Illinois Power Co., 151 Ill.2d 142,176 Ill.Dec. 22, 30, 601 N.E.2d 720, 728 (1992); Hanna v. Marshall Field & Co., 279 Ill.App.3d 784, 216 Ill.Dec. 283, 287, 665 N.E.2d 343, 347 (1st Dist.1996). Auston also fails on his claims of promissory estoppel and tortious interference with his employment contract (brought only against Schubnell). He did not include the promissory estoppel claim in his complaint or his amended complaint, adding it only at the summary judgment stage. This is too late in the day to be adding new claims. Furthermore, Auston’s unilateral expectation of job security cannot be enough to bind the Hospital, in the absence of some showing that it was receiving a particular benefit from the commitment to employ him in the .6 FTE Baylor position throughout his law school career. Auston’s claim against Schubnell for tortious interference with his employment contract fails as a result of our finding that no valid and enforceable contract existed between Auston and the Hospital on the terms Auston alleged. See generally Muthuswamy v. Burke, 269 Ill.App.3d 728, 207 Ill.Dec. 50, 54, 646 N.E.2d 616, 620 (1st Dist.1993), appeal denied, 162 Ill.2d 570, 209 Ill.Dec. 803, 652 N.E.2d 343 (1995). Disappointed job expectations are not always the result of venal or discriminatory actions on the part of employers. We do not doubt that Auston was disappointed when his hopes for his position at the Hospital were dashed after his second car accident and injuries, but his problems were largely self-inflicted. He did not comply with the Hospital’s leave policy, nor was he justified in assuming that he had an unshakeable right to remain in the Baylor weekend day-time shift position throughout his law school ca reer. We AffiRM the district court’s judgment." }, { "docid": "1086992", "title": "", "text": "which they suggested. The Plaintiff, then, is not equitably estopped from asserting usury remedies. 2. Promissory Estoppel. Noting that equitable estoppel need not invariably be predicated on a misrepresentation of past or present fact, the Minnesota Supreme Court has recognized a variant on the doctrine: Estoppel may be promissory. An estop-pel may be predicated on,a promise of future action relating to the intended abandonment of existing rights. Albachten v. Bradley, 212 Minn. 359, 362-363, 3 N.W.2d 783, 785 (1942). As with the broader doctrine, the party asserting promissory estoppel must have relied in good faith on the promise and have changed its position to its detriment, as to the subject matter of the promise. Id. This defense fails as well, again for the Defendants’ failure to prove that the Debtors made the predicate, material promise to them. The only promise which conceivably could trigger promissory estoppel in the present context is one going to the borrower’s future prospect of raising a usury claim or defense. The Debtors made no such promise; the parties’ colloquy was silent on the issue. The Plaintiff, as a result, is not barred by promissory estoppel either. 3. Conclusion, on Estoppel Issues. The usury laws function as a regulatory device, which may be imposed long after the fact of the subject transaction to achieve the goal of the law. Countenancing either form of the estoppel defense in circumstances like the ones presented here would wholly undercut this purpose. The Defendants cannot avoid liability to the Plaintiff on this ground. D. Whether the Plaintiff is Entitled to the Remedies He Seeks. The final question is the legal consequence of the Defendants’ violation of the usury laws. The Plaintiff requests two forms of relief: a money judgment against the Defendants in an amount equal to two times the amount of interest actually paid by the Debtors, plus the costs of this adversary proceeding; and a judgment declaring the promissory note to be void and avoiding the junior mortgage that secures the note. The Defendants oppose both requests. The Defendants acknowledge that the remedy created under Minn.Stat. § 334.011" }, { "docid": "3677054", "title": "", "text": "contract claim and not a claim based upon promissory estoppel; and a plaintiff is not allowed to raise new claims in response to a Motion for Summary Judgment. See Readmond v. Matsushita Electric Corp., 355 F.Supp. 1073 (E.D.Pa.1978). Promissory estoppel constitutes a cause of action separate and distinct from one sounding in contract. Plaintiff argues that, since promissory estoppel has its origins in quasi-contract and since all of its elements have been adequately set forth along with those of the contract claim, it is properly pled in Count II. The Court agrees that the elements of a claim for promissory estoppel are sufficiently set forth in Count II, and the Court will therefore treat that Count as alleging a claim for breach of contract and a promissory estoppel claim in the alternative. Taylor’s reliance on the promissory estoppel doctrine must fail. It is a cause of action which comes into play when the absence of consideration precludes a finding that there is a valid contract. In the right circumstances, Plaintiff’s reasonable and detrimental reliance constitutes a substitute for the requisite consideration in contract formation. In order to establish a claim based on promissory estoppel, a plaintiff must plead and prove (1) that defendant made an unambiguous promise, (2) that there has been reliance on the promise, (3) that the reliance was expected and foreseeable, and (4) that plaintiff relied on the promise to his detriment. Quake Construction v. American Airlines, Inc., 141 Ill.2d 281, 565 N.E.2d 990, 1004 (1990). An initial (and fatal) flaw in Taylor’s assertion of promissory estoppel is the absence of an unambiguous promise. The same alleged promises to Taylor serve as the basis both for his claim grounded in contract and that premised on promissory estoppel, and they are subject to the same legal analysis. For purposes of .summary judgment analysis only, the Court will accept as true both Plaintiffs assertion that a promise was made and his version of the promissory language. He was first assured that “he had nothing to worry about” and then that “he would not have to be concerned with job" }, { "docid": "11828296", "title": "", "text": "if the employee were reinstated.” The handbook also states that \"Gilead will notify any key employee of his/her job status as a key employee upon requesting leave.” Gilead did not notify Peters that he was considered a \"key employee” until April 25, 2003, long after his second leave request was granted. In any event, the issue of whether Peters is a \"key employee” has not been raised on appeal. .The dismissal of these claims is not at issue on appeal. . In its brief supporting its summary-judgment motion, Gilead noted that Peters brought an Indiana common-law claim for promissory estoppel/detrimental reliance but recharacterized it as a claim for equitable estoppel: \"Because this is an equitable estop-pel claim under a federal statute, federal (not Indiana) law principals [sic] of equitable es-toppel are applicable.” We disagree that a claim for relief grounded in promissory estop-pel is interchangeable with the doctrine of equitable estoppel. While both are equitable judicial doctrines based on detrimental reliance, the former is a cause of action and the latter is a defensive doctrine used to bar the opposing party from asserting a claim or defense. A remedial aspect of state contract law, a promissory-estoppel cause of action permits the enforcement of a promise that otherwise lacks the elements of a contract. \"Promissory estoppel is a sword, and equitable estoppel is a shield.” Jablon v. United States, 657 F.2d 1064, 1068 (9th Cir.1981). . Other circuits have recognized the availability of equitable estoppel to defeat a defense of FMLA ineligibility. See Minard v. ITC Deltacom Commc’ns, Inc., 447 F.3d 352, 358 (5th Cir.2006); Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 493-94 (8th Cir.2002); Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 723-25 (2d Cir.2001). . We questioned counsel about the state-law theory of this case at oral argument, and the parties agreed that jurisdiction was secure under 28 U.S.C. § 1332. Pursuant to 28 U.S.C. § 1653, Peters has since repleaded the jurisdictional component of his complaint to properly invoke diversity jurisdiction. .In Orr, the Indiana Supreme Court was confronted with the question of whether an employee handbook" }, { "docid": "23690813", "title": "", "text": "1202. Here, we are not holding that the hospital breached an at-will contract by not allowing Dr. Carlson to begin work. Rather, we hold that an employer can be held liable for a term of employment expressly promised to an employee, even if that term never actually began to run. IV. In granting a summary judgment in favor of the hospital, the district court also dismissed Dr. Carlson’s estoppel, fraud, negligence, and willful and wanton misconduct claims. We will affirm the district court’s dismissal of these claims. Dr. Carlson argues that his estoppel claim encompasses both promissory and equitable estoppel. We find that neither doctrine is applicable to this case. Promissory estoppel allows the court to enforce a party’s promise that is unsupported by consideration where (1) the promisor makes a promise that he reasonably expects to induce action or forbearance by the promisee, (2) the promise does induce action or forbearance by the promisee, (3) and injustice can only be avoided by enforcing the promise. Cardmone v. Univ. of Pittsburgh, 253 Pa.Super. 65, 74, 384 A.2d 1228, 1233. (1978). Generally, this doctrine is invoked in situations where the formal requirements of contract formation have not been satisfied and where justice would be served by enforcing a promise. Cardmone, 253 Pa.Super. at 74, n. 9, 384 A.2d at 1233, n. 9 (“Promissory estoppel has been characterized as a substitute for consideration, an exception to the ordinary contract requirements, or even as a ‘species of consideration’ ”) (quoting Fried v. Fisher, 328 Pa. 497, 501, 196 A. 39, 42, n. 5 (1938)). In light of our finding that the parties formed an enforceable contract, relief under a promissory estoppel claim is unwarranted. Equitable estoppel is not a separate cause of action. It may be raised either as an affirmative defense or as grounds to prevent the defendant from raising a particular defense. Paul, 375 Pa.Super. at 9, 543 A.2d at 1152. Dr. Carlson seeks to invoke equitable estoppel to prevent the hospital from denying the existence of an enforceable contract. However, the hospital bases its argument that there is no enforceable" }, { "docid": "3677053", "title": "", "text": "overcome or preclude a Statute of Frauds defense in a case involving a contract for employment. The Evans court noted the mischief that can occur with the use of promissory estoppel in the employment context: Employment at will ... remains the dominant type of employment relationship in the country, and would be seriously undermined if employees could use the doctrine of promissory estoppel to make alleged oral contracts of employment enforceable. Reliance is easily, perhaps too easily, shown in the employment setting.... Evans, 799 F.2d at 368 n. 3 (quoting Goldstick v. I.C.M. Realty, 788 F.2d 456 at 465). PROMISSORY ESTOPPEL In addition to contending that promissory estoppel bars Canteen from denying the enforceability of the contract because of the Statute of Frauds, Taylor also claims that the doctrine serves as an alternate basis for Canteen’s obligation to retain him in its employ. Taylor argues that summary judgment must be denied because Count II is really a promissory estop-pel claim for which genuine issues of material fact exist. Canteen points out that Taylor pled a contract claim and not a claim based upon promissory estoppel; and a plaintiff is not allowed to raise new claims in response to a Motion for Summary Judgment. See Readmond v. Matsushita Electric Corp., 355 F.Supp. 1073 (E.D.Pa.1978). Promissory estoppel constitutes a cause of action separate and distinct from one sounding in contract. Plaintiff argues that, since promissory estoppel has its origins in quasi-contract and since all of its elements have been adequately set forth along with those of the contract claim, it is properly pled in Count II. The Court agrees that the elements of a claim for promissory estoppel are sufficiently set forth in Count II, and the Court will therefore treat that Count as alleging a claim for breach of contract and a promissory estoppel claim in the alternative. Taylor’s reliance on the promissory estoppel doctrine must fail. It is a cause of action which comes into play when the absence of consideration precludes a finding that there is a valid contract. In the right circumstances, Plaintiff’s reasonable and detrimental reliance constitutes" }, { "docid": "3677052", "title": "", "text": "from asserting the Statute of Frauds. The public policy of Illinois to deter false and fraudulent claims which is embodied in the Statute of Frauds would be completely nullified if oral contracts for permanent employment did not have to comply with its requirements. Mariane v. School Directors of District 40, 154 Ill.App.3d 404, 506 N.E.2d 981, 983; appeal denied, 116 Ill.2d 561, 515 N.E.2d 111 (1987). Canteen also correctly argues that Taylor’s claim under the promissory estoppel doctrine is not an exception to the Statute of Frauds. Canteen relies upon the Seventh Circuit opinion in Evans v. Fluor Distribution Companies, Inc., 799 F.2d 364 (7th Cir.1986) which held that an employee’s action based on the doctrine of promissory estoppel was barred by the Illinois Statute of Frauds where the alleged oral agreement could not be performed in one year. The Evans holding was said to be mandated by the Illinois Supreme Court’s decision in Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 510, 202 N.E.2d 516 (1964) that a claim of promissory estoppel does not overcome or preclude a Statute of Frauds defense in a case involving a contract for employment. The Evans court noted the mischief that can occur with the use of promissory estoppel in the employment context: Employment at will ... remains the dominant type of employment relationship in the country, and would be seriously undermined if employees could use the doctrine of promissory estoppel to make alleged oral contracts of employment enforceable. Reliance is easily, perhaps too easily, shown in the employment setting.... Evans, 799 F.2d at 368 n. 3 (quoting Goldstick v. I.C.M. Realty, 788 F.2d 456 at 465). PROMISSORY ESTOPPEL In addition to contending that promissory estoppel bars Canteen from denying the enforceability of the contract because of the Statute of Frauds, Taylor also claims that the doctrine serves as an alternate basis for Canteen’s obligation to retain him in its employ. Taylor argues that summary judgment must be denied because Count II is really a promissory estop-pel claim for which genuine issues of material fact exist. Canteen points out that Taylor pled a" }, { "docid": "11504238", "title": "", "text": "alleged promises to Midway’s detriment. 50. Northwest alleges that Midway cannot recover on its promissory estoppel claim based on the following affirmative defenses: (1) in Paragraph 7 of the Confidentiality Agreement, Midway waived its claim for promissory estoppel; (2) Midway’s promissory estoppel claim is barred because Northwest was induced to make the alleged promises by Midway’s misrepresentations or omissions regarding the data Midway submitted to the DOT; (3) this claim is barred because Northwest made the alleged promises in the mistaken belief that the data Midway submitted to the DOT was reasonably accurate; and (4) this claim is barred because Midway repudiated any agreement resulting from the alleged promises by demanding terms that were materially different from the terms set forth at the October 8 hearing. This Court has already found that those defenses lack merit, and thus will not reconsider those defenses. See Count I. 51. In addition, Northwest alleges that Midway’s promissory estoppel claim is barred by the doctrine of unclean hands. Northwest asserts that Midway had unclean hands in that Midway allegedly filed false information with the DOT and misrepresented and failed to disclose material facts concerning its data submitted to the DOT, which caused Northwest to participate in the October 8 hearing and to make the alleged promises. 52. In Count I of the Counterclaim, the Court found that Midway did not commit fraudulent misrepresentation in connection with the data filed with the DOT. The Court adopts and incorporates by reference those findings. CONCLUSIONS OF LAW 1. Promissory estoppel is an equitable tool that allows the Court to infer a contract where none would otherwise exist. Quake Constr., Inc. v. American Airlines, Inc., 141 Ill.2d 281, 309-10, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (1990); Dickens v. Quincy College Corp., 245 Ill.App.3d 1055, 1062, 185 Ill.Dec. 822, 827, 615 N.E.2d 381, 386 (4th Dist.1993); Genin, Trudeau & Co. v. Integra Dev. Int’l, 845 F.Supp. 611, 616 (N.D.Ill.1994). “Promissory estoppel is an equitable device invoked to prevent a person from being injured by a change in position made in reasonable rebanee on another’s conduct.” Lawrence v." }, { "docid": "11117928", "title": "", "text": "turn. A. Promissory Estoppel In Count III, Genin claims promissory estoppel. Promissory estoppel is an equitable tool that allows the court to infer a contract where none would otherwise exist. Dickens v. Quincy College Corp., 245 Ill. App.3d 1055, 185 Ill.Dec. 822, 826, 615 N.E.2d 381, 385 (1993). The elements of promissory estoppel are: (1) a promise unambiguous in terms; (2) with reliance thereon by the promisee; (3) with such reliance being expected and foreseeable by the promisor; (4) and with the promisee in fact relying on the promise to his injury. A-Abart Elec. Supply v. Emerson Elec. Co., 956 F.2d 1399, 1404 (7th Cir.1992) (citations omitted); Phillips v. Britton, 162 Ill.App.3d 774, 114 Ill. Dec. 537, 545, 516 N.E.2d 692, 700 (1987). In order to invoke the doctrine, the promisee’s reliance must be “reasonable and justifiable.” Geva v. Leo Burnett Co., 931 F.2d 1220, 1223 (7th Cir.1991) (citations omitted). It is clear that a plaintiff may recover on a promissory estoppel theory despite the absence of a contract. Quake Constr. v. American Airlines, 141 Ill.2d 281, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (1990). Were there not a statute of frauds problem, this issue would be much clearer. Unfortunately, the precise question presented, whether the defense of promissory estoppel can take a contract out of the statute of frauds is, at best, an unsettled one in the Illinois courts. Phillips v. Britton, 162 Ill. App.3d 774, 114 Ill.Dec. 537, 545, 516 N.E.2d 692, 700 (1987) (“The law in Illinois is unsettled as to whether an action based on promissory estoppel can prevail, where, as here, the action would otherwise fall within the Statute of Frauds.”). Two cases, one from the Illinois Supreme Court, the other from the Seventh Circuit, are the major precedents on this question. We address those cases, and their progeny, respectively. The aging landmark case in Illinois is Sinclair v. Sullivan Chevrolet Co., 31 Ill.2d 507, 202 N.E.2d 516 (1964), where the Illinois Supreme Court found that equitable estoppel, a doctrine similar to promissory estoppel, could not overcome a statute of frauds defense absent proof" }, { "docid": "16841104", "title": "", "text": "Count V of the Amended Complaint, in which Reisdorf claims that Ogle made an enforceable promise under the doctrine of promissory estoppel. (See Doc. No. 53 at 8-14.) Under Minnesota law, “[promissory estoppel is an equitable doctrine that implies a contract in law where none exists in fact.” Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 746 (Minn.2000). “To state a claim for promissory estoppel, the plaintiff must show that (1) there was a clear and definite promise, (2) the promisor intended to induce reliance and such reliance occurred, and (3) the promise must be enforced to prevent injustice.” Park Nicollet Clinic v. Hamann, 808 N.W.2d 828, 834 (Minn.2011); see also Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn.1995) (citing Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn.1992)). Ogle argues that he is entitled to summary judgment on Reisdorfs promissory estoppel claim because Reisdorf has failed to show that he is entitled to equitable relief. (See Doc. No. 53 at 8-11.) First, Ogle asserts that neither of the two alleged promises made by Ogle to Reisdorf — that the Hasses were aware that DevGroup would be formed and conducted as a for-profit entity and that Reisdorf would be entitled to certain salary and other benefits and would not be terminated if he apologized to the Hasses — can form the basis for a-promissory estoppel claim due to the existence of Reisdorfs employment contract,' which precludes his promissory estoppel claim. (Id. at 9.) Second, Ogle contends that even if the alleged promises could form the basis for Reisdorfs promissory estoppel claim, “Reisdorfs claims are still barred because he did not rely oh them to his detriment, and any alleged reliance was not reasonable.” (Id.) Therefore, Ogle argues that he is entitled to summary judgment on Count V. Reisdorf, on the other hand, argues that the Court should deny Ogle’s motion because the Employment Agreement is not a legally enforceable contract and because Reisdorf relied to his detriment on Ogle’s alleged oral promises. (See Doc. No. 94 at 9-10.) First, Reisdorf argues that “[because the" }, { "docid": "12914036", "title": "", "text": "delay in seeking leave to amend. “ ‘A plaintiff may not amend [its] complaint through arguments in [its] brief in opposition to a motion for summary judgment.’” Speer v. Rand McNally & Co., 123 F.3d 658, 665 (7th Cir.1997) (quoting, Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996). Indeed, in Auston v. Schubnell, 116 F.3d 251, 255 (7th Cir.1997), the Seventh Circuit held that where plaintiff “did not include the promissory estoppel claim in his complaint or his amended complaint, adding it only at the summary judgment stage[,] [t]his is too late in the day to be adding new claims.” The rationale for such holdings has been explained by the Seventh Circuit in the following manner: Seeking to amend one’s complaint when it appears that the current one is a sure loser is not unusual; nor is the denial of leave to file an amended complaint. Our recent decision in Sanders, 56 F.3d at 773 (citations omitted), recites the litany of instances in which we affirmed a district court’s denial of leave to amend a complaint where discovery has ended and a motion is pending for dismissal of a count or for summary judgment. A denial is particularly warranted in instances which the plaintiff has failed to provide an explanation as to why the amendment did not take place sooner, and where the delay in granting the motion to amend would cause delay and burden the parties.... [Plaintiffs] are advised to take note of our admonition in Sanders, 56 F.3d at 775 (quoting William Shakespeare, Twelfth Night, II 42.), ‘In delays there lies no plenty.’ Hindo v. University of Health Sciences, 65 F.3d 608, 614 (7th Cir.1995). Quite apart from the fact that a party cannot amend its complaint through arguments in its brief, Rule 16(b) of the Federal Rules of Civil Procedure provides that a scheduling order “shall not be modified except upon a showing of good cause and by leave of the ... judge.” See generally, Business and CommeRcial Litigation in FedeRal Court § 27.3(D) (Robert L. Haig ed.) (West Group & ABA 1998). This" }, { "docid": "1504575", "title": "", "text": "For ease of reference, because the plaintiff failed to number the pages of his complaint, the court took the liberty of doing so. . The court in Health Scan, Ltd., while opining that there is no practical distinction between promissory and equitable estoppel (a point with which this court does not necessarily agree), nonetheless recognized that the former “may serve as an independent cause of action while die latter is utilized as a defense or to preclude a defense from being raised.” 725 F.Supp. at 270. . Although, the Second Circuit spoke in terms of a representation, when discussing this element, it required a showing of an affirmative misrepresentation. Lee, supra, 991 F.2d at 1010. The Second Circuit is not alone in this regard. See, e.g., Andre v. Salem Technical Services, 797 F.Supp. 1416, 1427 (N.D.Ill.1992) (emphasis in original) (\"ERISA bars only material misrepresentations.”) . The court in Fortune v. Medical Assoc, of Woodhull, P.C., 803 F.Supp. 636 (E.D.N.Y.1992), more expansively defined the elements essential to an equitable estoppel claim under federal common law as follows: 1) the party to be estopped misrepresented material facts; 2) the party to be estopped was aware of the true facts; 3) the party to be estopped intended that the misrepresentation be acted on or had reason to believe the party asserting the estoppel would rely on it; 4) the party asserting the estoppel did not know, nor should it have known, the true facts; and 5) the party asserting the estoppel reasonably and detrimentally relied on the misrepresentation. Id. at 643 (quoting National Companies Health P. v. St. Joseph’s Hosp., 929 F.2d 1558, 1572 (11th Cir.1991) (other citations omitted); see also Tregoning v. American Community Mut. Ins. Co., 12 F.3d 79, 83 (6th Cir.1993) (same). . The court is fully cognizant of the fact that Arcadian Phosphates is not an ERISA case. However, the court's research did not disclose any reported cases stating, or even implying, that in an ERISA case the elements of a promissory estoppel claimed based on federal common law principles are any different than those of an ordinary estoppel" }, { "docid": "1504517", "title": "", "text": "must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought.... Fourth, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party’s case.... When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.... Id. at 1223 (citations omitted). As to this last point, put another way, “[a]n adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavit or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993) (internal quotations omitted) (citations omitted). These general principles will serve as a guide in the court’s consideration of these summary judgment motions. A. Scope of Plaintiff’s Estoppel Cause of Action Before considering whether estoppel principles may be applied in this ERISA action, the court must first determine the exact parameters of plaintiff’s estoppel cause of action. Plaintiffs complaint, which is drafted in a deceptively simple manner, does not differentiate between a claim for promissory estoppel and one for equitable estoppel; he simply asserts one generic “estoppel” claim. See Complaint at 2. By contrast, in his memorandum of law plaintiff makes clear that he is asserting two separate estoppel theories: equitable and promissory. Plaintiffs Memorandum of Law at 7-13. .But because plaintiff does not believe that there is any “practical significance” between the two, he relies upon the same set of facts to establish both estoppel claims. See id. at 10 and n. 1 (quoting Health Scan, Ltd. v. Travelers Ins. Co., 725 F.Supp. 268, 270 n. 4 (E.D.Pa.1989)). Plaintiff is not alone in his confusion, or at least in his failure to adequately distinguish between these two equitable doctrines. Courts and litigants alike have confused the two. See, e.g., Frymire v. Painewebber," }, { "docid": "1241539", "title": "", "text": "negligent and intentional misrepresentation); Hortman v. City of Miamisburg, 110 Ohio St.3d 194, 199, 852 N.E.2d 716, 720 (2006)(promissory estop-pel cannot be based on a mere misstatement of fact); In re Smartalk Teleservices, Inc. Sec. Litig., 124 F.Supp.2d 487, 499 (S.D.Ohio 2000). The equitable estoppel claim set forth by Melissa Lopardo in the Second Amended Complaint also fails to state a claim upon which relief can be granted. Although there are a few courts that have treated this claim as a recognizable cause of action, the great majority of Ohio courts, including the Ohio Supreme Court, have recognized that equitable estoppel is a defense and not an independent cause of action. See, e.g., Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 502, 849 N.E.2d 268, 278 (2006)(“equitable estoppel is a defense”); Holt Co. of Ohio v. Ohio Machinery Co., 2007 Ohio 5557 ¶ 28, 2007 WL 3027084, *6 (2007); Cleveland v. Village of Marblehead, 2001 WL 279763, *2 (Ohio Ct.App. Mar. 23, 2001); see also J.D. Partnership v. Berlin Township Bd. of Tr., 412 F.Supp.2d 772, 786 (S.D.Ohio 2005); 42 Ohio Jur.3d Estoppel and Waiver § 30. “[E]stoppel is, according to the usual statement, a shield, not a sword. It does not furnish a basis for damages claims, but a defense against the claim of the stopped party.” First Fed. Sav. & Loan Ass’n of Toledo v. Perry’s Landing, Inc., 11 Ohio App.3d 135, 145, 463 N.E.2d 636 (1983). Based on the above-cited authority, Richard and Catherine Lopardo’s claims for Promissory Estoppel against Ham-brecht & Quist, J.P.-Morgan, and Frank Gruttadauria; Charles Lopardo’s claims for Promissory Estoppel against Cowen & Company, S.G. Cowen, and Frank Grutta-dauria; and Melissa Lopardo’s claims for Equitable Estoppel against Cowen & Company, S.G. Cowen and Frank Gruttadauria are all dismissed. Based on the factual allegations set forth in the First and Second Amended Complaints it appears that any further amendments to these claims would be futile under the circumstances. Therefore, the Plaintiffs’ claims are hereby dismissed with prejudice. E. Pattern of Corrupt Activity Claims Counts Six, Seven and Eight of the First Amended Complaint allege" }, { "docid": "23690814", "title": "", "text": "384 A.2d 1228, 1233. (1978). Generally, this doctrine is invoked in situations where the formal requirements of contract formation have not been satisfied and where justice would be served by enforcing a promise. Cardmone, 253 Pa.Super. at 74, n. 9, 384 A.2d at 1233, n. 9 (“Promissory estoppel has been characterized as a substitute for consideration, an exception to the ordinary contract requirements, or even as a ‘species of consideration’ ”) (quoting Fried v. Fisher, 328 Pa. 497, 501, 196 A. 39, 42, n. 5 (1938)). In light of our finding that the parties formed an enforceable contract, relief under a promissory estoppel claim is unwarranted. Equitable estoppel is not a separate cause of action. It may be raised either as an affirmative defense or as grounds to prevent the defendant from raising a particular defense. Paul, 375 Pa.Super. at 9, 543 A.2d at 1152. Dr. Carlson seeks to invoke equitable estoppel to prevent the hospital from denying the existence of an enforceable contract. However, the hospital bases its argument that there is no enforceable contract on Pennsylvania’s employment at-will law, and Pennsylvania does not recognize equitable estoppel as an exception to employment at-will. Paul v. Lankenau Hosp., 524 Pa. 90, 569 A.2d 346, 348 (1990). Furthermore, our holding on Dr. Carlson’s contract claim renders his equitable estoppel claim untenable. While the district court failed to address Dr. Carlson’s fraud claim, its order granting summary judgment dismissed his entire complaint. Exercising plenary review of this order, we will affirm the district court’s dismissal of the fraud claim. In order to sustain a cause of action for fraud, Dr. Carlson must prove, inter alia, that the hospital’s representatives intended to deceive him when they made misrepre sentations regarding his eligibility for staff privileges as a family practitioner, i.e., that they knew that their statements were false. Borelli v. Barthel, 205 Pa.Super. 442, 446, 211 A.2d 11, 13 (1965). Dr. Carlson offers no proof that could be construed to show that Dr. Derisio and Nowlan actually knew that he did not have adequate residency experience to qualify for staff privileges in his" }, { "docid": "2084575", "title": "", "text": "III. For the reasons stated above, the district court’s decision granting summary judgment in favor of Fluor is Affirmed. . Evans also claimed that his termination breached Fluor’s duty of good faith and fair dealing imposed upon his employment agreement by California law. The district court ruled, contrary to Evans's contention, that Illinois law governed in this case and that Illinois did not recognize a covenant of good faith and fair dealing in the employee-employer relationship. The court therefore granted summary judgment on this claim in favor of Fluor. On appeal, Evans does not challenge either the decision regarding the applicability of Illinois law to this case or the ruling with respect to the alleged covenant of good faith and fair dealing. Accordingly, we express no opinion regarding the district court’s resolution of these issues. . In both Ozier and Sinclair the Illinois Supreme Court held that equitable estoppel, as opposed to promissory estoppel, would not be subject to the statute of frauds defense. \" ‘Equitable estoppel’ as defined in [those cases] is similar to promissory estoppel in all but one element: the gravamen of equitable estoppel is material misrepresentation of past or present circumstances. Promissory estoppel, in contrast, merely requires the allegation of a promise.” R.S. Bennett & Co. v. Economy Mechanical Industries, Inc., 606 F.2d 182, 187 (7th Cir.1979) (citations and footnote omitted). . Indeed, the facts of Sinclair indicate the problems that can occur with the use of promissory estoppel in the employment context: Employment at will (i.e., without a contract of employment) remains the dominant type of employment relationship in this country, and would be seriously undermined if employees could use the doctrine of promissory estoppel to make alleged oral contracts of employment enforceable. Reliance is easily, perhaps too easily, shown in the employment setting. Agreeing to work for a particular employer, thereby giving up alternative opportunities for employment, can easily be described as reliance on the employer’s alleged oral promises concerning the terms of employment. Goldstick, 788 F.2d at 465. . IIl.Ann.Stat. ch. 26, ¶ 2-201(1) provides: Except as otherwise provided in this Section a" } ]

[ { "docid": "18496121", "title": "", "text": "serve. On April 24, 1985, the trustee filed a complaint objecting to the debtor’s discharge pursuant to 11 U.S.C. § 727. The complaint alleged eight claims for relief. The court granted the trustee’s motion for summary judgment on the ground that (1) the debtor was guilty of fraudulent conduct in connection with the filing of a proof of claim in another bankruptcy case and (2) the debtor concealed and falsified books and records from which its financial condition and business transactions could be determined. In re Overmyer, 121 B.R. 272 (Bankr.S.D.N.Y.1990). On November 13, 1990, this court entered an order denying the debtor’s discharge. The debtor filed a notice of appeal from this order on November 16, 1990 and did nothing further to perfect the appeal. On July 30, 1991, the trustee moved in this court for an order dismissing the debt- or’s appeal for failure to prosecute. In the absence of any party appearing in court on behalf of the debtor, the court entered an order dated August 23, 1991, dismissing the debtor’s appeal. The debtor has now moved for an order altering or amending the dismissal order for lack of jurisdiction. DISCUSSION The filing of a notice of appeal divests the bankruptcy court of jurisdiction to proceed with respect to the matters raised by such appeal. In re Overmyer, 53 B.R. 952, 954 (Bankr.S.D.N.Y.1985). See also Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982) (“filing of a notice of appeal ... confers jurisdiction on the court of appeals and divests the district court of control over those- aspects of the case involved in the appeal”). Although the court has not found any case in the Southern District of New York which holds that a bankruptcy court lacks jurisdiction to dismiss an appeal for failure to prosecute such appeal, there is ample authority in the Southern District of New York that such dismissal motions are appropriately made in the district court, not in the bankruptcy court. See, e.g., Adler v. Bancplus Mortgage Corp., 108 B.R. 435 (S.D.N.Y.1989). The reason" } ]

[ { "docid": "4165452", "title": "", "text": "a continuance [which] have wasted many hours of court time.” Id. at 993. In addition, the court imposed a $2,500 sanction on Mr. Hutter for his “defiance of this court’s discovery order and abuse of the bankruptcy process.” Id. at 988. This court finds that on this issue, the appellants has met the standard Hirschfeld, supra. The imposition of the sanctions on the Hutters will cause them substantial harm because of their limited financial resources. However, staying the sanctions pending appeal will have only a minimal effect on the public’s interest in deterring the abuse the court system. IY The motions for stay pending appeal [Case No. 3:97cvl049, Doc. No. 8; Case No. 3:97cvl050, Doc. No. 16] are GRANTED in part and DENIED in part as follows: the court’s order dated July 25, 1997 staying the sale of certain real estate known as 933 Lake Avenue, Greenwich, Connecticut is hereby VACATED; and the sanctions of $2,500 on Mr. & Mrs. Hutter are hereby STAYED pending appeal. The parties shall file memoranda with this court by January 30, 1998 stating any issues in addition to the sanctions which remain pending before this court. It is so ordered. DATED at Hartford, Connecticut, this 14th day of January, 1998. *s*Dominic J. Squatrito DOMINIC J. SQUATRITO UNITED STATES DISTRICT JUDGE APPENDIX B APPENDIX C UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT RICHARD COAN, TRUSTEE v. GERHARD P. HUTTER Case No. 3:97cvl050(DJS) ORDER UPON CONSIDERATION OF the motion of appellant Gerhard P. Hutter for leave to schedule, on shortened notice, additional argument on motion for stay pending appeal, and for stay pending reargument, good cause having been shown, the motion is hereby GRANTED, and it is ORDERED AND DECREED, that pending further order of this court, the proposed auction sale of that certain real property known as 993 Lake Avenue, Greenwich, Connecticut, shall be, and hereby is, STAYED. It is so ordered. DATED at Hartford, Connecticut, this 25th day of July, 1997. *s*Dominie J. Squatrito DOMINIC J. SQUATRITO UNITED STATES DISTRICT JUDGE APPENDIX D UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT In Re: NANCE HUTTER," }, { "docid": "4165451", "title": "", "text": "court finds that a constitutional challenge to 11 U.S.C. § 363(h) would likely fail. See In re Bernier, 176 B.R. 976 (Bankr.D.Conn.1995) (Shiff, J.). Mrs. Hutter’s Objection to Putnam Trust’s Claim In the appellants’ statement of issues on appeal, they raise the issue of whether the bankruptcy court erred in overruling Mrs. Hutter’s objections to the Putnam Trust proof of claim. However, in the body of the brief, the appellants appear to argue only that Mrs. Hutters’ objection to Putnam Trust’s claim cannot provide the basis for sanctions against her. To the extent Mrs. Hutter appeals the bankruptcy court’s ruling upholding Putnam Trust’s claim, the court finds that she has not shown a substantial possibility of success on her challenge to the validity or amount of the mortgage. See In re Hutter, 207 B.R. at 989-90. $2,500 Sanctions on Mr. and Mrs. Hutter On April 30, 1997, the bankruptcy court imposed a fine of $2,500 on Mrs. Hutter for “her frivolous objection to Putnam’s claim and related application for pro bono attorney and motions for a continuance [which] have wasted many hours of court time.” Id. at 993. In addition, the court imposed a $2,500 sanction on Mr. Hutter for his “defiance of this court’s discovery order and abuse of the bankruptcy process.” Id. at 988. This court finds that on this issue, the appellants has met the standard Hirschfeld, supra. The imposition of the sanctions on the Hutters will cause them substantial harm because of their limited financial resources. However, staying the sanctions pending appeal will have only a minimal effect on the public’s interest in deterring the abuse the court system. IY The motions for stay pending appeal [Case No. 3:97cvl049, Doc. No. 8; Case No. 3:97cvl050, Doc. No. 16] are GRANTED in part and DENIED in part as follows: the court’s order dated July 25, 1997 staying the sale of certain real estate known as 933 Lake Avenue, Greenwich, Connecticut is hereby VACATED; and the sanctions of $2,500 on Mr. & Mrs. Hutter are hereby STAYED pending appeal. The parties shall file memoranda with this court by" }, { "docid": "4165430", "title": "", "text": "327(a) and (d) for approval to employ his law firm, nor am I aware of any instance in which I approved such an application without the approval of the United States Trustee. Further, I am not aware of any instance in which the United States Trustee has not reviewed and commented upon applications under § 330(a) filed by trustee Coan’s law firm for compensation, and the debtor’s motion has not brought any such instance to my attention. I am not aware of any instance where I entered an order approving compensation for trustee Coan’s law firm over the objection of the United States Trustee, and the debtor’s motion has not brought any such instance to my attention. Finally, I am not aware of any instance where I approved compensation for trustee Coan’s law firm without the representation by the Office of the United States Trustee that the amount requested had been reviewed and approved. Indeed, contrary to the assertion made in the debtor’s motion that I awarded such fees in this case over her objection, it is noteworthy that I denied, sua sponte, the trustee’s application for attorneys fees and expenses in the 1997 Sale Order because his law firm failed to file a retention application under § 327(a), (d). See In re Hutter, supra, 207 B.R. at 994. Significantly, the debtor does not assert that trustee Coan’s compensation, or that of his law firm, has been inappropriate, only that it has been disproportionately higher than that of other trustees and their firms. I am not aware of any complaints by any of the other trustees or anyone else regarding trustee Coan’s frequency of appointment, his compensation, or that of his law firm. But more to the point I am, as noted, completely removed from the process of trustee appointments and the statutory calculation of their trustee compensation. In addition, the statutory insertion of the United States Trustee’s duty to supervise, review, and challenge provides an independent safeguard against excessive professional compensation. There is no allegation, and no suspicion, that those safeguards are inadequate or that they have been inadequately" }, { "docid": "4165457", "title": "", "text": "of an order approving the retention of Coldwell Banker Real Estate Services, Inc. by the Bankruptcy Estate of Nance Hutter. WHEREFORE, Richard M. Coan, Trustee of the Bankruptcy Estate of Nance Hutter, Gerhard Hutter and Nance Hutter, hereby request that this Court enter an order authorizing the retention of Coldwell Banker Real Estate Services, Inc. RICHARD M. COAN, TRUSTEE By *s:|iTimothy D. Miltenberger Timothy D. Miltenberger (ct08874) Coan, Lewendon, Royston Deming & Gulliver 495 Orange Street New Haven, CT 06511 (208) 624-4756 His Attorney GERHARD HUTTER AND NANCY HUTTER By *s* James C. Graham James C. Graham Pepe & Hazard LLP Goodwin Square Hartford, CT 06103 (860) 522-2796 Their Attorneys . Gerhard Hutter appeared at the hearing with the debtor and has previously argued on appeal that my decision in the 1997 Sale Order was tainted by an impermissible animus against her. See Appendix A. . On several occasions, court proceedings were continued due to the debtor’s absence. On some occasions, the debtor filed a request for a continuance and did not appear for the hearing. On others, she did not even request a continuance. In addition, she made numerous requests for continuances in open court. After one such request was denied, she suggested the onset of a medical emergency, effectively necessitating the continuance. See In re Hutter, 207 B.R. at 992. Gerhard Hutter’s repeated alleged medical emergencies similarly forced several continuances. See id. at 984-988. . In In re Hutter, 215 B.R. 308, 312 (Bankr.D.Conn.1997), appeal pending, I concluded that the debtor had no standing to object to the trustee’s motion to sell her husband’s interest in the Property under § 363(h). . See text supra at 634. . See, e.g., In re Yimam, 214 B.R. 463, 465 (Bankr.D.Md.1997) (finding that husband and wife’s “continuous abuse of the bankruptcy process” by filing alternative bankruptcy petitions for the \"purpose of forestalling foreclosure” warranted the issuance of an order under § 105(a) which excluded their residence from the automatic stay on any new petition filed). . In calculating these figures, the debtor does not state whether trustee Coan’s law firm was" }, { "docid": "4165409", "title": "", "text": "phase began on June 1, 1992 when Putnam commenced a foreclosure action in the Connecticut Superior Court and ended on November 3, 1994 after their fifth motion to reopen the sale date set by that court was denied, the Connecticut Appellate Court dismissed their appeal and amended appeal, and the Connecticut Supreme Court denied their petition for certification. The second phase began on December 12, 1994 when the debtor filed a bankruptcy petition in this court. On that date, the Hutters owed Putnam $624,321.79 and Household $656,881.49. Further, they had not paid real estate taxes to Greenwich, Connecticut since 1990. The 1997 Sale Order, inter alia, granted the trustee’s motion for judgment under Rule 7037 F.R. Bankr.P., as a sanction against Gerhard Hutter and authorized the sale of the Property, including his co-ownership interest under 11 U.S.C. § 363(h). The trustee’s motion followed numerous continuances which were granted over the trustee’s objection. On May 9, 1997, the Hutters filed a motion for reconsideration which was denied on June 6. On July 25,1997, the district court granted a stay of the auction sale pending appeal. On January 14, 1998, the district court vacated that stay. A copy of the January 14 order is attached for ease of reference as Appendix A. On March 11, 1998, the Hutters filed a Notice of Motion for Reimplementation of Stay of Bankruptcy Sale Pending Disposition of Appeal in the Second Circuit Court of Appeals. On March 31, the following order entered: By this motion Appellants seek reinstatement, pending full briefing and determination on the merits, of a District Court’s recently vacated stay of a Bankruptcy Court’s orders (i) imposing default judgment as a discovery sanction in an adversary proceeding seeking to authorize the sale of a non-debtor’s one-half interest in his marital residence pursuant to 11 U.S.C. §§ 363(h), and thereafter (ii) authorizing an auction sale of that home... IT IS HEREBY ORDERED THAT the motion is hereby denied ... (emphasis added). A copy of that order is attached as Appendix B. On April 2, 1998, the trustee filed the instant motion to reschedule the" }, { "docid": "4165438", "title": "", "text": "which was scheduled to consider, inter alia, whether the trustee was entitled to attorney’s fees and expenses incurred responding to the debtor’s motion to reconvert. Again, the debtor declined to attend. The tape of that hearing, for which there is no transcript, has been reviewed. I made no statement that trustee Coan was entitled to a fee or reimbursement of expenses. Instead, I merely stated that a written decision would follow, addressing, inter alia, whether sanctions would be imposed against the debtor under Rule 9011(a), and “[took] the papers.” See Tape at 469. Moreover, as noted, I ruled, sua sponte, that trustee Coan’s law firm was not entitled to compensation because he failed to seek and obtain court approval for the employment of his firm to represent the estate. In re Hutter, supra, 207 B.R. at 994. Accordingly, it is concluded that the debt- or’s recusal motion should be denied, irrespective of its late filing. That conclusion is buttressed by District Judge Squatrito’s January 14, 1998 decision denying the Hutters’ motion for stay of the auction sale pending appeal: “Mr. Hutter has not shown that the bankruptcy court’s ruling was tainted by an impermissible animus against Mrs. Hutter.” (attached herein as Appendix A). II. Motion to Reschedule Sale Some additional background is provided in addressing the trustee’s motion to reschedule the auction sale, which was also heard on April 14, 1998, in order to present the context in which it arose. On July 15, 1997, separate orders entered which (i) approved the trustee’s notice of an auction sale on July 29; and (ii) permitted the trustee to sell the Property free and clear of interests, claims, and liens. See 11 U.S.C. § 363(b), (0 and (h). The Hutters filed various notices of appeal from, inter alia, the 1997 Sale Order and subsequent orders related to the auction sale of the Property. See supra at 633-634. On July 21, the Hutters retained counsel to represent them in their appeals. On July 25, the district court stayed the scheduled auction sale of the Property, pending a final ruling on the motion for" }, { "docid": "4165416", "title": "", "text": "in even more waste of judicial resources and delay. As noted infra at 636-642, the debtor’s motion has no merit. Whether the Motion Was Made After the Entry of Judgment The 1997 Sale Order, inter alia, authorized the trustee to sell Gerhard Hutter’s co-ownership in the Property under § 363(h). On January 14, 1998, the district court vacated its July 25, 1997 stay pending appeal of the 1997 Sale Order. On March 31, 1998, the Second Circuit Court of Appeals denied the motion filed by the debtor and Gerhard Hut-ter to reinstate the stay pending appeal. The debtor’s recusal motion was filed on April 14,1998. Whether the Movant Can Demonstrate Good Cause for Delay The debtor appears to acquiesce in the conclusion that her recusal motion was not timely made, because on April 29, 1998, she filed an unsolicited Supplement to Motion to Disqualify, in which she claims that “had [she] known about [my] favoritism [toward the trustee], which goes back at least as far as 1993, she would have immediately moved Judge Shiff to disqualify himself, and for Richard Coan to be replaced with another chapter 7 trustee.” See Supplement to Motion at ¶ 11. This allegation is discussed infra at 637-641. The debtor’s attempt to avoid the consequences of her untimely recusal motion is without merit, but even if her motion were timely, it should be denied. Disqualifícation In the absence of adequate proof to the contrary, a judge’s impartiality is presumed. In re Cooke, 160 B.R. 701, 703 (Bankr.D.Conn.1993) citing Wolfson v. Palmieri, 396 F.2d 121, 126 (2d Cir.1968). As the Second Circuit observed in In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312, (2d Cir.1988), reh’g denied, 869 F.2d 116 (2d Cir.1989), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989), “[l]itigants are entitled to an unbiased judge; not to a judge of their choosing.” Although the debtor does not identify which subsection of § 455 is applicable to her motion, it is determined that the pertinent provisions are § 455(a) and § 455(b)(1). The analysis of those subsections looks principally to" }, { "docid": "4165444", "title": "", "text": "of $2,500 entered against each. On July 8, 1997, this court held oral argument in which the appellants were pro se. On July 21, 1997, the Hutters obtained counsel. Accordingly, to permit a full briefing of the issues, this court entered a temporary stay on the sale of the property pending a final ruling on the motion for a stay pending appeal. This court held further oral argument on August 7,1997. II Our Court of Appeals has set forth the following factors to be considered in determining whether to stay the actions of a trial court pending appeal: (1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a substantial possibility, although less than a likelihood, of success on appeal, and (4) the public interests that may be affected. Hirschfeld v. Board of Elections, 984 F.2d 35, 38 (2d Cir.1993) (citations and quotations omitted). This standard applies to appeals from the bankruptcy court. See In re Country Squire Associates of Carle Place, L.P., 203 B.R. 182, 183 (2d Cir. BAP 1996). These appeals contain issues of both fact and law. Findings of fact must be accepted unless they are clearly erroneous. See; e.g., In re Ionosphere Clubs, Inc., 922 F.2d 984, 988-89 (2d Cir.1990), cert. denied, 502 U.S. 808, 112 S.Ct. 50, 116 L.Ed.2d 28 (1991). On the other hand, conclusions of law are not entitled to the same deference. In re Gaudet, 132 B.R. 670, 672 (D.R.I.1991). Rather, they are reviewed de novo. In re Ionosphere, 922 F.2d at 988-89. III Entry of Judgment Against Mr. Hutter On May 3, 1996, the trustee commenced the adversary proceeding against Mr. Hutter seeking to sell the residence free and clear of Mr. Hutter’s co-ownership interest, pursuant to 11 U.S.C. § 363(h). The bankruptcy court granted Mr. Hutter four continuances of the trial date, two of which were due to Mr. Hutter’s claims of ill health. On Novém-ber 27, the court entered two discovery orders: one ordering the deposition of Mr. Hutter" }, { "docid": "4165408", "title": "", "text": "MEMORANDUM AND ORDER ON TRUSTEE’S MOTION TO RESCHEDULE AUCTION SALE AND DEBTOR’S MOTION TO DISQUALIFY UNDER 28 U.S.C. § 455 ALAN H.W. SHIFF, Chief Judge. The chapter 7 trustee filed this motion to reschedule the auction sale of a residence jointly occupied by the chapter 7 debtor and Gerhard P. Hutter, her husband. On the date of the hearing, the debtor filed a Motion to Disqualify Judge Pursuant to 28 U.S.C. § 455. The debtor’s motion to recuse is denied, and the trustee’s motion to resehed-ule the auction sale is granted. BACKGROUND The factual predicate for these motions is stated in Richard Coan v. Gerhard P. Hutter (In re Hutter), 207 B.R. 981 (Bankr.D.Conn. 1997), appeal pending, (the “1997 Sale Order”). This is the second phase of the Hutters’ concerted and coordinated effort to block the sale of their residence, located at 993 Lake Avenue, Greenwich, Connecticut (the “Property”). On June 30,1986 and May 8, 1989, the Hutters granted mortgages to Putnam Trust Company of Greenwich (“Putnam”) and Household Realty Corporation (“Household”) respectively. The first phase began on June 1, 1992 when Putnam commenced a foreclosure action in the Connecticut Superior Court and ended on November 3, 1994 after their fifth motion to reopen the sale date set by that court was denied, the Connecticut Appellate Court dismissed their appeal and amended appeal, and the Connecticut Supreme Court denied their petition for certification. The second phase began on December 12, 1994 when the debtor filed a bankruptcy petition in this court. On that date, the Hutters owed Putnam $624,321.79 and Household $656,881.49. Further, they had not paid real estate taxes to Greenwich, Connecticut since 1990. The 1997 Sale Order, inter alia, granted the trustee’s motion for judgment under Rule 7037 F.R. Bankr.P., as a sanction against Gerhard Hutter and authorized the sale of the Property, including his co-ownership interest under 11 U.S.C. § 363(h). The trustee’s motion followed numerous continuances which were granted over the trustee’s objection. On May 9, 1997, the Hutters filed a motion for reconsideration which was denied on June 6. On July 25,1997, the district court" }, { "docid": "4165433", "title": "", "text": "not give rise to an appearance of partiality unless that friendship is very much out of the ordinary course, and presents a potential for actual impropriety if the worst implications are realized.” Id., citing United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir.1985) (“In today’s legal culture friendships among judges and lawyers are common. They are more than common; they are desirable.”), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986). The debtor does not state or suggest any extrajudicial or judicial relationship which might be a basis for the alleged favoritism or the asserted “unusually close relationship.” In fact I do not have and never have had any personal, familial, social, professional, financial or any other relationship with trustee Coan, or for that matter, with any of the trustees that serve in this district. Moreover, I have no motive to favor trustee Coan, and the debtor identifies none. I did not meet Richard Coan until I became a judge. My only contact with trustee Coan has been in my capacity as a judge and his capacity as trustee and/or attorney for the trustee. He may also have served as an attorney for other clients in this court, but I have no specific recollection of such representation. The debtor also alleges that I have ignored her “documented and proven eomplaint[s] about the trustee.” Just as the 1997 Sale Order relied upon the bankruptcy code to address the debtor’s conversion motion, see supra at 637, my December 12, 1997 nunc pro tunc order relied upon the code, the model rules of professional conduct, and applicable case law to address the debtor’s complaints about trustee Coan. In re Hutter, supra, 215 B.R. 308. As noted, the United States Trustee is charged with the duty of supervising trustees, see 28 U.S.C. § 586(a)(1), (3). The dockets in this bankruptcy case and the adversary proceeding do not disclose that the office of the United States Trustee has filed any objection or statement opposing anything that trustee Coan has done or attempted to do in this case. Indeed that office supported" }, { "docid": "4165458", "title": "", "text": "hearing. On others, she did not even request a continuance. In addition, she made numerous requests for continuances in open court. After one such request was denied, she suggested the onset of a medical emergency, effectively necessitating the continuance. See In re Hutter, 207 B.R. at 992. Gerhard Hutter’s repeated alleged medical emergencies similarly forced several continuances. See id. at 984-988. . In In re Hutter, 215 B.R. 308, 312 (Bankr.D.Conn.1997), appeal pending, I concluded that the debtor had no standing to object to the trustee’s motion to sell her husband’s interest in the Property under § 363(h). . See text supra at 634. . See, e.g., In re Yimam, 214 B.R. 463, 465 (Bankr.D.Md.1997) (finding that husband and wife’s “continuous abuse of the bankruptcy process” by filing alternative bankruptcy petitions for the \"purpose of forestalling foreclosure” warranted the issuance of an order under § 105(a) which excluded their residence from the automatic stay on any new petition filed). . In calculating these figures, the debtor does not state whether trustee Coan’s law firm was employed by him in every case. Indeed, that firm has been employed by at least one other chapter 7 trustee since 1993. . The April 21, 1997 hearing discloses that I made the following statements: ... in addition to anything that the trustee would be entitled to get for any violation for Rule 9011, sanctions are also appropriate if the court finds that there was a violation of 9011 and believes that a sanction should follow for the purposes for which sanctions are generally imposed____I will take the papers on the 9011 matter____ A decision will follow. It is almost in final form and should issue in the next day or so, which will address the issues that the debtor has asked me to clarify. The debtor wanted me to clarify my denial of her request for the appointment of a pro bono attorney. She wanted me to clarify my order denying her request for a continuance. A memorandum and order will enter which will address those questions____ All right. I am going to consider" }, { "docid": "4165434", "title": "", "text": "as a judge and his capacity as trustee and/or attorney for the trustee. He may also have served as an attorney for other clients in this court, but I have no specific recollection of such representation. The debtor also alleges that I have ignored her “documented and proven eomplaint[s] about the trustee.” Just as the 1997 Sale Order relied upon the bankruptcy code to address the debtor’s conversion motion, see supra at 637, my December 12, 1997 nunc pro tunc order relied upon the code, the model rules of professional conduct, and applicable case law to address the debtor’s complaints about trustee Coan. In re Hutter, supra, 215 B.R. 308. As noted, the United States Trustee is charged with the duty of supervising trustees, see 28 U.S.C. § 586(a)(1), (3). The dockets in this bankruptcy case and the adversary proceeding do not disclose that the office of the United States Trustee has filed any objection or statement opposing anything that trustee Coan has done or attempted to do in this case. Indeed that office supported the trustee’s application for the appointment of his law firm nunc pro tunc. See In re Hutter, supra, 215 B.R. at 311. Furthermore, the United States Trustee has opposed the debt- or’s motion to recuse. The debtor’s final assertion that I have shown favoritism toward the trustee is that “[ejach time Richard Coan made a request, it was granted. Each time Mrs. Hutter made a request, it was denied.” Supplement to Motion at ¶ 8. The debtor fails to provide any support for that assertion and cites no reference to any matter in this case. In fact, her assertion is false and is belied by the record. Not only were the trustee’s requests denied on several occasions, including his applications for attorney’s fees and costs because he failed to file a retention order, see In re Hutter, 207 B.R. at 994, and supra at 639-640, but the debtor’s requests were granted on several occasions, including her request that I abstain from hearing her counterclaim against Household. See Debtor’s June 16, 1997 Motion for Removal of" }, { "docid": "4165414", "title": "", "text": "50 pages of entries through April 14, 1998, the hearing date. Forty-two of those pages are after June 6, 1995. The debtor filed 52 pleadings and other papers after February 4, 1997, i.e., 25 motions, 25 objections, and two supplemental objections. Her motions sought, inter alia, the appointment of pro bono counsel; continuances ; a stay pending appeal; sanctions; and various other motions to expedite hearing, quash, abstain, compel, clarify, reconsider, decide matters without oral argument, correct the docket, remove the trustee and strike his pleadings, and dismiss the adversary proceeding. In addition, the trustee initiated six motions after February 4, 1997. As a consequence of the matters filed by the debtor and the trustee, the court conducted 29 hearings. The 20 page docket of the adversary proceeding Coan v. Hutter, supra, 207 B.R. 981, which resulted in the 1997 Sale Order, contains 12 pages following February 4, 1997. Notwithstanding her lack of standing, the debtor joined Gerhard Hutter in filing two pleadings after February 4,1997. The trustee filed five motions after that date, and the court conducted seven hearings on the matters filed by the debtor and the trustee. The debtor did not move for my recusal in the adversary proceeding or in this ease until April 14, 1998. It is therefore apparent that the debtor “participated in a substantial manner” in this case before she moved for my recusal. Whether Granting the Motion Would Represent a Waste of Judicial Resources Granting the debtor’s motion would represent a significant waste of judicial resources, as her failure to move for my recusal at the earliest possible moment after “she came to understand the true hopelessness of [her] situation” resulted in a substantial increase in the docket of this case. As a consequence, I have invested innumerable hours and resources in connection with those matters, taking “steps that [would have been] inappropriate,” assuming her recusal motion had any merit. In re International Business Machines Corp., supra, 45 F.3d 641, 643. Those observations do not consider the time it would take another judge to become familiar with this case, which would result" }, { "docid": "4165456", "title": "", "text": "court of its control of those aspects of the ease involved in the appeal.” In re Wonder Corporation of America, 81 B.R. 221, 224 (Bkrtcy.D.Conn.1988), citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-402, 74 L.Ed.2d 225 (1982)(per curiam). This transfer of jurisdiction preserves the integrity of the appellate process by preventing the confusion sure to arise if the same issue is presented in two courts concurrently. In re Wonder Corporation of America, 81 B.R. at 224. 7. The Trustee, Gerhard Hutter and Nance Hutter desire to have the property listed with a qualified broker while this Court considers the Motion for Stay Pending Appeal filed by Gerhard Hutter. 8. As shown in the attached affidavit, neither Joyce Somm nor Coldwell Banker Real Estate Services, Inc. have an interest adverse to the Bankruptcy Estate of Nance Hutter. Both Joyce Somm and Coldwell Banker Real Estate Services, Inc. are qualified to market real property in Greenwich, Connecticut. The Office of the United States Trustee has no objection to the entry of an order approving the retention of Coldwell Banker Real Estate Services, Inc. by the Bankruptcy Estate of Nance Hutter. WHEREFORE, Richard M. Coan, Trustee of the Bankruptcy Estate of Nance Hutter, Gerhard Hutter and Nance Hutter, hereby request that this Court enter an order authorizing the retention of Coldwell Banker Real Estate Services, Inc. RICHARD M. COAN, TRUSTEE By *s:|iTimothy D. Miltenberger Timothy D. Miltenberger (ct08874) Coan, Lewendon, Royston Deming & Gulliver 495 Orange Street New Haven, CT 06511 (208) 624-4756 His Attorney GERHARD HUTTER AND NANCY HUTTER By *s* James C. Graham James C. Graham Pepe & Hazard LLP Goodwin Square Hartford, CT 06103 (860) 522-2796 Their Attorneys . Gerhard Hutter appeared at the hearing with the debtor and has previously argued on appeal that my decision in the 1997 Sale Order was tainted by an impermissible animus against her. See Appendix A. . On several occasions, court proceedings were continued due to the debtor’s absence. On some occasions, the debtor filed a request for a continuance and did not appear for the" }, { "docid": "4165442", "title": "", "text": "court retains jurisdiction to implement or enforce the order or judgment”); Hagel v. Drummond (In re Hagel), 184 B.R. 793, 798 (9th Cir.BAP 1995). There is no stay pending appeal of the 1997 Sale Order. The court is not asked to modify or alter that order but rather to implement the terms and conditions of that order and the corresponding orders which set sale dates. The Hutters’ assertion that a private sale was ordered by the district court on October 20, 1997 is equally unavailing. The district court’s margin order, attached as Appendix D, authorized the trustee to retain a real estate broker, it did not order such retention. Even more to the point, however, is the Court of Appeals’ March 31, 1998 order denying the Hutters’ Motion for Reimposition of Stay of Bankruptcy Sale Pending Disposition of Appeal. See Appendix B. In their Notice of Motion, the Hutters twice specifically identified the sale that they were seeking to stay as an auction sale, id., and the Court of Appeals referred to the sale as an auction sale. ORDER Accordingly, IT IS ORDERED that the debtor’s motion for disqualification is denied; IT IS FURTHER ORDERED that the trustee’s Motion to Reschedule Auction Sale is granted; IT IS FURTHER ORDERED that the Auction Sale shall be conducted on June 19, 1998; and IT IS FURTHER ORDERED that the debtor and Gerhard Hutter are prohibited from interfering with the Auction Sale of the Property. APPENDIX A UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT IN RE: NANCE HUTTER, Debtor. Case No. 3:97evl049(DJS) RICHARD COAN, TRUSTEE v. GERHARD P. HUTTER Case No. 3:97cvl050(DJS) MEMORANDUM OPINION AND ORDER I The appellants, Gerhard and Nance Hut-ter, have filed these appeals in Nance Hut-ter’s Chapter 7 bankruptcy case and Gerhard Hutter’s adversary proceeding. They move to stay various orders of the United States Bankruptcy Court for the District of Connecticut entered in those proceedings. Principally, they seek to block the sale of their residence by the Chapter 7 trustee and the sale of Gerhard Hutter’s co-ownership interest in the property. In addition, they move to stay sanctions" }, { "docid": "4165413", "title": "", "text": "455 motion is timely: (1) the movant has participated in a substantial manner in trial or pretrial proceedings; (2) granting the motion would represent a waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the movant can demonstrate good cause for delay. United States v. Brinkworth, supra, 68 F.3d at 639. As applied to the facts here, it is determined that the recusal motion was not timely filed. The debtor identifies June 6, 1995 as the date when she first “began to fear that [she] could not receive a fair and impartial treatment.” Affidavit in Support of Motion for Disqualification at 3. She also states that on February 4, 1997, she “came to understand the true hopelessness of [her] situation, and [my] absolute unwillingness to give [her] even the slightest attention or consideration, depriving [her] of [her] due process, and equal protection under the law.” Id. at 8. Whether the Movant Participated in a Substantial Manner in Trial or Pre-trial Proceedings The docket in this bankruptcy case contains 50 pages of entries through April 14, 1998, the hearing date. Forty-two of those pages are after June 6, 1995. The debtor filed 52 pleadings and other papers after February 4, 1997, i.e., 25 motions, 25 objections, and two supplemental objections. Her motions sought, inter alia, the appointment of pro bono counsel; continuances ; a stay pending appeal; sanctions; and various other motions to expedite hearing, quash, abstain, compel, clarify, reconsider, decide matters without oral argument, correct the docket, remove the trustee and strike his pleadings, and dismiss the adversary proceeding. In addition, the trustee initiated six motions after February 4, 1997. As a consequence of the matters filed by the debtor and the trustee, the court conducted 29 hearings. The 20 page docket of the adversary proceeding Coan v. Hutter, supra, 207 B.R. 981, which resulted in the 1997 Sale Order, contains 12 pages following February 4, 1997. Notwithstanding her lack of standing, the debtor joined Gerhard Hutter in filing two pleadings after February 4,1997. The trustee filed five motions after that date, and" }, { "docid": "4165454", "title": "", "text": "Debtor Chapter 7 Case No. 94-52227. GERHARD HUTTER, Appellant, v. RICHARD M. COAN, TRUSTEE, Appellee. Civil Action No. 3:97CV1050(DJS) October 9,1997 JOINT MOTION FOR RELIEF PENDING APPEAL Richard M. Coan, Trustee of the Bankruptcy Estate of Nance Hutter, by and through his attorneys, Coan, Lewendon, Roy-ston, Deming & Gulliver, and Gerhard Hut-ter and Nance Hutter, by and through their attorneys, Pepe & Hazard, LLP, hereby move for relief pending appeal pursuant to Rule 8005, Fed, R. Bankr., and in support of their motion, state as follows: 1. The Bankruptcy Estate of Nance Hut-ter owns a one-half interest in 993 Lake Avenue, Greenwich, Connecticut. Gerhard Hutter owns the other one-half interest. 2. On April 30, 1997, the bankruptcy court entered an order permitting the Trustee to sell his one-half interest in the property along with Gerhard Hutter’s one-half interest in the property pursuant to 11 U.S.C. § 363(h). Gerhard Hutter has appealed that order to this Court. 3. The Hutters signed a listing agreement with Joyce Somm of Coldwell Banker Real Estate Services, Inc. The Trustee applied for authority to engage Joyce Somm of Coldwell Banker Real Estate Services, Inc. to market 993 Lake Avenue in Greenwich, Connecticut. If the broker is to be paid from the proceeds of the sale which belong to the Bankruptcy Estate of Nance Hutter, her retention as a broker for the bankruptcy estate must be approved, generally in advance, under relevant provisions of the Bankruptcy Code. See 11 U.S.C. § 327. 4. At the hearing on the application on September 16, 1997, counsel for the Trustee disclosed that the Trustee intended to list the property in conjunction with Gerhard Hutter, the owner of the other half-interest in 993 Lake Avenue. 5. The Bankruptcy Court declined to enter the order authorizing the retention of the real estate broker, observing that the procedures under which 993 Lake Avenue may be sold are on appeal to the United States District Court. 6. “The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district" }, { "docid": "4165443", "title": "", "text": "an auction sale. ORDER Accordingly, IT IS ORDERED that the debtor’s motion for disqualification is denied; IT IS FURTHER ORDERED that the trustee’s Motion to Reschedule Auction Sale is granted; IT IS FURTHER ORDERED that the Auction Sale shall be conducted on June 19, 1998; and IT IS FURTHER ORDERED that the debtor and Gerhard Hutter are prohibited from interfering with the Auction Sale of the Property. APPENDIX A UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT IN RE: NANCE HUTTER, Debtor. Case No. 3:97evl049(DJS) RICHARD COAN, TRUSTEE v. GERHARD P. HUTTER Case No. 3:97cvl050(DJS) MEMORANDUM OPINION AND ORDER I The appellants, Gerhard and Nance Hut-ter, have filed these appeals in Nance Hut-ter’s Chapter 7 bankruptcy case and Gerhard Hutter’s adversary proceeding. They move to stay various orders of the United States Bankruptcy Court for the District of Connecticut entered in those proceedings. Principally, they seek to block the sale of their residence by the Chapter 7 trustee and the sale of Gerhard Hutter’s co-ownership interest in the property. In addition, they move to stay sanctions of $2,500 entered against each. On July 8, 1997, this court held oral argument in which the appellants were pro se. On July 21, 1997, the Hutters obtained counsel. Accordingly, to permit a full briefing of the issues, this court entered a temporary stay on the sale of the property pending a final ruling on the motion for a stay pending appeal. This court held further oral argument on August 7,1997. II Our Court of Appeals has set forth the following factors to be considered in determining whether to stay the actions of a trial court pending appeal: (1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a substantial possibility, although less than a likelihood, of success on appeal, and (4) the public interests that may be affected. Hirschfeld v. Board of Elections, 984 F.2d 35, 38 (2d Cir.1993) (citations and quotations omitted). This standard applies to appeals from the bankruptcy court. See In" }, { "docid": "4165435", "title": "", "text": "the trustee’s application for the appointment of his law firm nunc pro tunc. See In re Hutter, supra, 215 B.R. at 311. Furthermore, the United States Trustee has opposed the debt- or’s motion to recuse. The debtor’s final assertion that I have shown favoritism toward the trustee is that “[ejach time Richard Coan made a request, it was granted. Each time Mrs. Hutter made a request, it was denied.” Supplement to Motion at ¶ 8. The debtor fails to provide any support for that assertion and cites no reference to any matter in this case. In fact, her assertion is false and is belied by the record. Not only were the trustee’s requests denied on several occasions, including his applications for attorney’s fees and costs because he failed to file a retention order, see In re Hutter, 207 B.R. at 994, and supra at 639-640, but the debtor’s requests were granted on several occasions, including her request that I abstain from hearing her counterclaim against Household. See Debtor’s June 16, 1997 Motion for Removal of Action; July 17, 1997 Order Granting Discretionary Abstention. In addition, I note that on several occasions I granted, over the repeated objections of the trustee, continuances requested by the debtor and/or Gerhard Hutter. Moreover, even assuming that I denied the debtor’s motions more often than those of the trustee, and sustained his objections more often than I did hers, those rulings do not demonstrate bias. Hearings Conducted Without the Debtor’s Representation The debtor’s final allegation in support of her recusal motion is that I conducted hearings on January 10 and April 21, 1997, at which she was neither present nor represented, and at which “[I] discussed how [I] was going to rule in [her] case with the attorneys for the other parties....” Motion to Disqualify at 5. The January 10 hearing was scheduled to consider the debtor’s motion to reconvert her case from chapter 7 to chapter 13. The debtor received notice of that hearing. She did not attend. The transcript of that hearing discloses my statement that the debtor was not eligible for chapter" }, { "docid": "4165453", "title": "", "text": "January 30, 1998 stating any issues in addition to the sanctions which remain pending before this court. It is so ordered. DATED at Hartford, Connecticut, this 14th day of January, 1998. *s*Dominic J. Squatrito DOMINIC J. SQUATRITO UNITED STATES DISTRICT JUDGE APPENDIX B APPENDIX C UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT RICHARD COAN, TRUSTEE v. GERHARD P. HUTTER Case No. 3:97cvl050(DJS) ORDER UPON CONSIDERATION OF the motion of appellant Gerhard P. Hutter for leave to schedule, on shortened notice, additional argument on motion for stay pending appeal, and for stay pending reargument, good cause having been shown, the motion is hereby GRANTED, and it is ORDERED AND DECREED, that pending further order of this court, the proposed auction sale of that certain real property known as 993 Lake Avenue, Greenwich, Connecticut, shall be, and hereby is, STAYED. It is so ordered. DATED at Hartford, Connecticut, this 25th day of July, 1997. *s*Dominie J. Squatrito DOMINIC J. SQUATRITO UNITED STATES DISTRICT JUDGE APPENDIX D UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT In Re: NANCE HUTTER, Debtor Chapter 7 Case No. 94-52227. GERHARD HUTTER, Appellant, v. RICHARD M. COAN, TRUSTEE, Appellee. Civil Action No. 3:97CV1050(DJS) October 9,1997 JOINT MOTION FOR RELIEF PENDING APPEAL Richard M. Coan, Trustee of the Bankruptcy Estate of Nance Hutter, by and through his attorneys, Coan, Lewendon, Roy-ston, Deming & Gulliver, and Gerhard Hut-ter and Nance Hutter, by and through their attorneys, Pepe & Hazard, LLP, hereby move for relief pending appeal pursuant to Rule 8005, Fed, R. Bankr., and in support of their motion, state as follows: 1. The Bankruptcy Estate of Nance Hut-ter owns a one-half interest in 993 Lake Avenue, Greenwich, Connecticut. Gerhard Hutter owns the other one-half interest. 2. On April 30, 1997, the bankruptcy court entered an order permitting the Trustee to sell his one-half interest in the property along with Gerhard Hutter’s one-half interest in the property pursuant to 11 U.S.C. § 363(h). Gerhard Hutter has appealed that order to this Court. 3. The Hutters signed a listing agreement with Joyce Somm of Coldwell Banker Real Estate Services, Inc. The Trustee" } ]

[ { "docid": "23032190", "title": "", "text": "issues will not in any way hamper the rights of MTB in the MTB action. If anything, as we have noted, finality would enhance the situation. And, in fact, when the Magistrate Judge entered the consolidation order, he also stayed the MTB action pending the outcome of motions then before the Court in the forfeiture action. Those motions are the same motions that eventually gave rise to this appeal. As MTB has recognized, it has never had any interest in the issues before us. We therefore see no reason not to address these issues. In short, we find that this case is more like the distinct declaratory and tort actions in Hall and the separable suits in Bogosian than the nearly indistinguishable homeowners’ suits in Bergman. Because an examination of the Bogosian factors weighs heavily in favor of finality, we hold that the orders in the forfeiture case are final orders for the purposes of section 1291. We will therefore exercise our jurisdiction to decide the issues on appeal. III. Merits Kesten contends that the Supplemental Rules governing admiralty and forfeiture proceedings do not bar it from filing a motion to dismiss before answering interrogatories that the government served with its complaint, and that the District Court erred in holding to the contrary. It urges that it was authorized to file its motion to dismiss before serving an answer, and that its motion should be granted because the government failed to file suit within one year of the date of the offense. The government takes the position that the District Court’s decision refusing to consider Kesten’s motion to dismiss was sound, as was its dismissal of Kesten’s claim as a sanction for discovery abuses, and that it timely commenced the forfeiture action. A. Dismissal of the Motion to Dismiss Kesten first asks us to reverse the Court’s order refusing to entertain its motion to dismiss the forfeiture complaint. Following the procedure authorized by Federal Rule of Civil Procedure 12, Kesten filed a 12(b)(6) motion. It did so after it had filed a verified claim but before answering the complaint or" } ]

[ { "docid": "22167285", "title": "", "text": "the defendants moved to dismiss under Fed.R.Civ.P. 12(b)(6). In August of 1987, with the consent of both parties, plaintiff Savin amended her complaint to alter a paragraph which described when she received notice of the MAC dividend. In September of 1987, the plaintiffs filed their RICO case statement. On July 14, 1989, Savin filed her motion to amend her amended complaint in order to add factual allegations to her RICO claim. On August 27, 1990, the district court denied the motion to amend, dismissed all claims against defendant Chase Manhattan Bank, and dismissed all claims against defendants CSX, C & O, and B & O except for the section 10(b) claims. Lorenz v. CSX Corp., 736 F.Supp. 650 (W.D.Pa.1990). Motions for reconsideration were filed by the plaintiffs and the defendant railroads. On August 8, 1991, the district court reinstated plaintiff Lorenz’s RICO claim and dismissed plaintiff Savin’s section 10(b) claim for exceeding the applicable statute of limitations. Savin appealed. While her appeal was pending, we remanded for reconsideration in light of the recent enactment of 15 U.S.C. § 78aa-l(a). On August 18, 1992, as amended October 7, 1992, the district court dismissed Lorenz’s section 10(b) and RICO claims. On November 3, 1992, the district court dismissed Sa-vin for the reasons stated in its Lorenz opinion of August 18. Plaintiffs filed these appeals. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the grant of a motion to dismiss. General Elec. Co. by Levit v. Cathcart, 980 F.2d 927, 931 (3d Cir.1992). We accept all factual allegations in the complaints and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiffs. We may affirm only if it is certain that no relief could be granted under any set of facts which could be proven. Id. II. RICO CLAIMS AGAINST DEFENDANTS CSX AND C & 0 The plaintiffs brought civil RICO claims under 18 U.S.C. § 1962(c) against defendants CSX and C & 0, alleging that they conducted them subsidiary B & O’s enterprise through a pattern of racketeering activity. The district court" }, { "docid": "9517259", "title": "", "text": "of privacy in the report under the Fourteenth Amendment because she had revealed her opinion about her grandniece for a limited purpose and with the expectation that it would be kept secret. The District Court dismissed the complaint under Fed.R.Civ.P. 12(b)(6), ruling it failed to state a claim because the Fourteenth Amendment does not protect that type of communication. Malleus filed a timely notice of appeal. II. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. Malleus argues that the District Court erred in dismissing her § 1983 claim. The District Court held that Malleus failed to plead that a right secured by the Constitution had been violated. See Barna v. City of Perth Amboy, 42 F.3d 809, 815 (3d Cir.1994). Malleus argues that her Fourteenth Amendment right to privacy was violated when her opinion about her grandniece’s truthfulness was disclosed by George, Hackman, and Conrad. We exercise plenary review over a district court’s grant of a motion to dismiss. AT & T v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir.2006). When reviewing a motion to dismiss, “[a]ll allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom.” Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir.1992). A motion to dismiss should be granted if the plaintiff is unable to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and" }, { "docid": "6470890", "title": "", "text": "to amend its complaint. The amended complaint contained what Hudson modestly termed “prophylactic” changes in its cause of action: in particular, the proposed amended complaint alleged for the first time that Freddie Mac had terminated LiTenda’s portfolio “without cause.” The district court denied Hudson’s motion in an order dated January 13, 1997. The district court quoted Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 225 (3d Cir.1995) for the proposition that “a district court loses jurisdiction over a case once it has completed the remand by sending a certified copy of the remand order to the state court.” Id. Because a certified copy of the remand order had been sent to the state court on November 27,1996, the district court concluded that its jurisdiction to hear Hudson’s motion for reconsideration had been divested on that date. The district court denied Hudson’s motion without reaching the merits. Hudson filed a timely appeal. II. Although neither party contests our appellate jurisdiction, we have an independent duty to ensure that we have jurisdiction over a case or controversy before we attempt to resolve it. See PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir.1993). In this case, the inquiry is complicated by the fact that there are three distinct orders that Hudson has attempted to appeal. The first is the November 26, 1996 order dismissing Hudson’s claims against Freddie Mac under Fed.R.Civ.P. 12(b)(6), which we will refer to as “the dismissal order.” The second is the November 26, 1996 order remanding the remaining claims against LiTen-da to state court pursuant to 28 U.S.C. § 1367(c), which we will refer to as “the remand order.” The third is the January 13, 1997 order denying Hudson’s motion for reconsideration, which we will refer to as “the reconsideration order.” Our cases establish that we have appellate jurisdiction over the dismissal order pursuant to 28 U.S.C. § 1291. See Carr v. American Red Cross, 17 F.3d 671, 674-77 (3d Cir.1994) (holding that a dismissal order preceding a § 1367(c) remand order is reviewable by direct appeal pursuant to 28 U.S.C. § 1291). The reasoning" }, { "docid": "9183834", "title": "", "text": "license. The City capped the number of taxi medallions in circulation at 600. In April 2016, Newark Mayor Ras Baraka announced an agreement between the City and Uber, under which Uber agreed to pay the City $1 million per year for 10 years and provide $1.5 million in liability insurance for each of its drivers in exchange for permission to operate in Newark (the \"Agreement\"). Uber also agreed to have a nationally-accredited third-party provider conduct background checks on all of its drivers. Under the Agreement, Uber and its drivers are not required to possess taxi medallions and Uber is permitted to set its own rates and fares. Nor are its drivers required to obtain commercial driver's licenses. In August 2016, the plaintiffs filed a complaint against the City, bringing claims on behalf of a class of holders of taxi medallions and on behalf of a class of holders of limousine licenses who operate within Newark. The plaintiffs advanced claims for: (1) violations of the Takings Clause of the Fifth Amendment, as incorporated against the states by the Fourteenth Amendment (Count 1); (2) violations of the Equal Protection Clause of the Fourteenth Amendment (Counts 2 and 3); (3) violations of their substantive due process rights (Count 4); (4) breach of contract under New Jersey law (Count 5); (5) promissory estoppel under New Jersey law (Count 6); and (6) equitable estoppel under New Jersey law (Count 7). The City moved to dismiss the complaint for failure to state a claim under Rule 12(b)(6). The District Court dismissed the complaint. The plaintiffs filed this timely appeal. II. The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court's grant of a motion to dismiss pursuant to Rule 12(b)(6) de novo. Fleisher v. Standard Ins., 679 F.3d 116, 120 (3d Cir. 2012). In doing so, we accept all factual allegations in the complaint as true and construe those facts in the light most favorable to the plaintiffs. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)." }, { "docid": "9183835", "title": "", "text": "by the Fourteenth Amendment (Count 1); (2) violations of the Equal Protection Clause of the Fourteenth Amendment (Counts 2 and 3); (3) violations of their substantive due process rights (Count 4); (4) breach of contract under New Jersey law (Count 5); (5) promissory estoppel under New Jersey law (Count 6); and (6) equitable estoppel under New Jersey law (Count 7). The City moved to dismiss the complaint for failure to state a claim under Rule 12(b)(6). The District Court dismissed the complaint. The plaintiffs filed this timely appeal. II. The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court's grant of a motion to dismiss pursuant to Rule 12(b)(6) de novo. Fleisher v. Standard Ins., 679 F.3d 116, 120 (3d Cir. 2012). In doing so, we accept all factual allegations in the complaint as true and construe those facts in the light most favorable to the plaintiffs. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). \"To survive a motion to dismiss, a complaint must contain sufficient factual allegations, taken as true, to 'state a claim to relief that is plausible on its face.' \" Fleisher, 679 F.3d at 120 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). III. The plaintiffs raise several issues on appeal. They first argue that the District Court erred by concluding that they had failed to allege a protectable property interest on which either their Takings Clause or substantive due process claims could be based. They next argue that the District Court erred by concluding that they failed to state a claim under the Equal Protection Clause. The plaintiffs finally argue that the District Court erred in dismissing their state law breach of contract, promissory estoppel, and equitable estoppel claims. We have considered the plaintiffs' arguments, and for the following reasons, we will affirm the District Court's order in all respects. A. The Fifth Amendment's Takings Clause prohibits the government from \"taking private property for public" }, { "docid": "23283727", "title": "", "text": "in reviewing the defendants’ Rule 12(b)(1) challenge, and we will apply the same standard in conducting our plenary review of the jurisdictional issues. IV. Discussion A. Waiver of Claims for Failure to Reassert in Subsequent Pleading Before turning to the District Court’s jurisdictional rulings, we must address Sun Ship’s contention that Atkinson waived his right to appeal the District Court’s dismissal of Sun Ship from the Second Amended Complaint by failing to replead claims against Sun Ship in his Third Amended Complaint. We agree with Sun Ship and hold that Atkinson has waived his right to assert error in connection with the dismissal of his claims against Sun Ship. In addition to naming Fidelity and Penn Ship, the Second Amended Complaint also included claims against Sun Ship. As discussed above, the District Court dismissed, without prejudice, all of the claims pertaining to Sun Ship under Rules 9 and 12(b)(6). The District Court specifically granted Atkinson leave to amend his complaint but warned him that further amendments would probably not be permitted. When Atkinson filed his Third Amended Complaint, he once again named Penn Ship and Fidelity, but Sun Ship was no longer included as a party. Indeed, when the District Court disposed of the remain ing defendants’ motions to dismiss the Third Amended Complaint, it remarked that “Sun Ship has been dropped as a defendant.” Atkinson, 255 F.Supp.2d at 361. On appeal, Atkinson now challenges the District Court’s decision to grant Sun Ship’s motion to dismiss even though the dismissal was without prejudice, Atkinson did not include Sun Ship in the Third Amended Complaint, and Atkinson did not otherwise indicate an intention to stand on his dismissed pleading as to Sun Ship. We conclude that where, as here, it would not have been futile to replead dismissed claims but those claims are nevertheless omitted from an amended pleading, the right to challenge the basis for dismissal on appeal is waived. This Court has yet to articulate a rule concerning whether the failure to include a dismissed claim in an amended pleading constitutes a waiver of the right to challenge on" }, { "docid": "886616", "title": "", "text": "to dismiss for lack of personal jurisdiction. While these motions were pending, the district court consolidated this matter with two similar cases and vacated all pending motions, after which Appellants filed a consolidated class action complaint. The consolidated complaint contained, in addition to the claims asserted in the initial complaint, ten new statutory claims from five different states, as well as claims for negligence and unjust enrichment. YMUS subsequently filed a third motion to dismiss for failure to state a claim, and YMC filed a second motion to dismiss for lack of personal jurisdiction. On August 19, 2014, the district court granted in part YMUS’s motion, dismissing Appellants’ warranty and consumer fraud claims, and granting YMC’s motion in its entirety. Appellants then filed their first amended complaint, to which YMUS responded with a fourth motion to dismiss. The district court granted YMUS’s motion entirely, but granted Appellants leave to replead their consumer fraud claims. Finally, on February 2, 2015, Appellants filed their second amended complaint (SAC), to which YMUS responded with its fifth motion to dismiss for failure to state a claim. On April 29, 2015, the district court granted YMUS’s motion and dismissed Appellants’ only remaining claims with prejudice. Appellants now appeal the district court’s grant of YMC’s motion to dismiss for lack of personal jurisdiction, and its grant of YMUS’s fifth motion to dismiss Appellants’ consumer fraud claims. JURISDICTION AND STANDARD OF REVIEW We exercise jurisdiction over appeals from final decisions of the district court pursuant to 28 U.S.C. § 1291. We review de novo a district court’s dismissal of a party for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). We similarly conduct de novo review of “a district court’s dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).” Walker v. Beard, 789 F.3d 1125, 1131 (9th Cir. 2015). ANALYSIS I. The District Court Lacked General Jurisdiction Over YMC Federal courts apply state law to determine the bounds of their jurisdiction over a" }, { "docid": "17520480", "title": "", "text": "MEMORANDUM AND ORDER RAYMOND J. BRODERICK, District Judge. This an action brought on behalf of a minor plaintiff against the City of Philadelphia seeking damages for an alleged violation of plaintiff’s constitutional rights. Plaintiff claims that the City violated her Fourteenth Amendment rights by failing to provide her with adequate police protection. She also alleges a pendent state law tort claim against the City. She asserts jurisdiction under 28 U.S.C. §§ 1331 and 1343(3). The defendant, City of Philadelphia, has moved for summary judgment pursuant to Fed.R.Civ.P. 56. The City bases its motion solely on the pleadings. Neither party has filed an affidavit, and apparently no depositions have been taken. The Answers to Interrogatories filed with the Court contain only the names of potential witnesses. Therefore, the Court, in accordance with the established practice, has considered the City’s motion for summary judgment as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). In re Penn Central Securities Litigation, 347 F.Supp. 1327 (E.D.Pa.1972), modified on other grounds, 357 F.Supp. 869 (E.D.Pa.1973), aff’d 494 F.2d 528 (3d Cir. 1974); 6 J. Moore, Federal Practice ¶ 56.-02[3] at 2045 (2d ed. 1971) [hereinafter cited as Moore]. The test on a Rule 12(b)(6) motion to dismiss is whether the complaint states a cause of action upon which relief can be granted. A complaint should not be dismissed unless it appears to a certainty that the plaintiff is entitled to no relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); 2A Moore ¶ 12.08 at 2271-74. The Court dismissed plaintiff’s original complaint filed in this action. In the original complaint, plaintiff alleged that she had a remedy under 42 U.S.C. § 1983 and that the Court had jurisdiction under 28 U.S.C. § 1343(3). At that time, a municipality was not deemed to be a “person” within the meaning of § 1983 under Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The complaint was dismissed on that ground and on the further ground that plaintiff had failed to plead with sufficient particularity a factual basis for" }, { "docid": "79469", "title": "", "text": "“declinefd] to exercise supplemental jurisdiction” over the state law claims. App. 54. The court granted the plaintiffs leave to amend, but cautioned them to “remedy the gaping deficiencies” observed by it and other district courts that have dismissed substantially similar complaints. App. 55 & nn. 70-72 (citing cases). In particular, the plaintiffs were instructed to “clari[fy]” whether they were also seeking gap time wages. App. 49 n.49. After the plaintiffs filed a second amended complaint in each case, the parties stipulated to the filing of third amended complaints. The third amended complaints, which were filed on February 10, 2012, abandoned the ERISA and RICO claims and instead sought relief solely under the FLSA and Pennsylvania law. The defendants moved to dismiss, and the District Court granted their motions in another consolidated opinion. The court dismissed the plaintiffs’ FLSA claims with prejudice on the grounds that they failed to plausibly allege employer-employee relationships between the plaintiffs and all of the defendants, or that any of the named plaintiffs had worked overtime and were not compensated. The court again “decline[d] to exercise supplemental jurisdiction” over the remaining state law claims, which it dismissed without prejudice to their reassertion in state court. App. 7, 72. The plaintiffs timely appealed “each and every part of this final order,” including the District Court’s September 15, 2010 orders denying their motions to remand the state cases to the Philadelphia Court of Common Pleas. App. 8. II. The District Court had subject matter jurisdiction over the plaintiffs’ FLSA claims pursuant to 28 U.S.C. § 1331, and we exercise jurisdiction over the District Court’s dismissal of those claims pursuant to 28 U.S.C. § 1291. Our review over a district court’s grant of a motion to dismiss under Rule 12(b)(6) is plenary. Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quota tion marks omitted)." }, { "docid": "23321795", "title": "", "text": "dismiss count one of the complaint for failure to state a claim upon which relief can be granted. See Fed.R. Civ.P. 12(b)(6). On April 19, 1990, the district court heard oral argument concerning Temple’s motion to dismiss. Following the argument, the district court took a short recess and then ruled from the bench that it would dismiss count one of Unger’s complaint with prejudice for failure to state a claim and would dismiss the remaining pendent state law counts without prejudice. On April 25, 1990, the district court issued a written opinion and final order to that effect. Unger filed a timely notice of appeal on May 21, 1990. In her appeal, Unger raises essentially four issues. First, she argues that the district court erred when it failed to hold that her complaint set forth a property or liberty interest sufficient to withstand Temple’s motion to dismiss. Second, Un-ger argues that the district court erred when it held that she received all process due her from Temple under the facts and circumstances described in her complaint. Third, she argues that the district court failed to assume all facts pleaded in her complaint to be true and failed to draw all reasonable inferences from those facts in her favor. Finally, she argues that the district court should have given her leave to amend her complaint before dismissing it. III. We have appellate jurisdiction over the district court’s final order pursuant to 28 U.S.C.A. § 1291 (West Supp.1990). Because Unger sought to state a claim under 42 U.S.C.A. § 1983, the district court exercised subject matter jurisdiction pursuant to 28 U.S.C.A. §§ 1331 and 1343 (West Supp.1990). Since the district court dismissed Unger’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, our scope of review is plenary: We accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them. Dismissal under Rule 12(b)(6) for failure to state a claim is limited to those instances where it is certain that no relief could be granted under any set of" }, { "docid": "22605789", "title": "", "text": "original complaint (“Original Complaint”), while other defendants filed motions to dismiss the First Amended Complaint (“First Amended Complaint”). Because this appeal considers motions to dismiss both complaints, we will refer to either the Original Complaint or the First Amended Complaint when necessary. Before proceeding to the merits of the case, it is also useful to set forth the actions of the district court that we must review in this appeal. First, in response to a motion filed by the NYSDCS defendants, and before plaintiffs filed their First Amended Complaint, the district court dismissed the NYSDCS defendants for lack of personal jurisdiction. Second, after plaintiffs filed their First Amended Complaint, the district court also: (1) granted the City’s motion to dismiss the § 1983 claims; and (2) denied a motion by plaintiffs for leave to further amend their First Amended Complaint. Finally, the district court dismissed sua sponte plaintiffs’ ADA claim against the City, and all claims against the individual LAPD defendants. Plaintiffs timely appeal as to each of these decisions by the district court. We have jurisdiction pursuant to 28 U.S.C. § 1291. II. STANDARDS OF REVIEW A. Rule 12(b)(6) Standard When a district court dismisses a claim pursuant to a Rule 12(b)(6) motion, “we evaluate the complaint de novo to decide whether it states a claim upon which relief could be granted.” Gonzalez v. Metropolitan Transp. Auth., 174 F.3d 1016, 1018 (9th Cir.1999). All factual allegations set forth in the complaint “are taken as true and construed in the light most favorable to [plaintiffs.” Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996). Conclusory allegations of law, however, are insufficient to defeat a motion to dismiss. Id. B. Notice Pleading Standard Our review of the district court’s orders dismissing plaintiffs’ federal claims with prejudice is governed by the federal system of notice pleading under Fed. R.Civ.P. 8(a). Rule 8(a)(2) states that a “pleading which sets forth a claim for relief ... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The Supreme Court has stated" }, { "docid": "2609443", "title": "", "text": "22, 1991, Chrysler filed a Rule 12(b)(6) motion to dismiss the federal securities fraud count, and a Rule 12(b)(1) motion to dismiss the pendent state law count for lack of subject matter jurisdiction. At oral argument on Chrysler’s motions to dismiss, appellant offered to submit an amended complaint within one week. She did not. On February 25, 1991, the district court dismissed both counts of the Original Complaint. The court reasoned that appellant and the class members lacked standing to sue under § 10(b) and Rule 10b-5 because the Original Complaint did not allege facts which, if true, made the class members either “purchasers” or “sellers” of securities within the meaning of the statute and the rule. The court then dismissed the state law count for lack of pendent jurisdiction. On February 27, 1991, apparently before receiving a copy of the court’s dismissal opinion and order, appellant filed an amended, three count complaint. The first count alleged violations of § 10(b) and Rule 10b-5, and expanded the factual allegations in the Original Complaint. The second count sounded in breach of fiduciary duties, and the third alleged a violation of § 242 of Delaware’s General Corporation Law. 8 Del. C. § 242 (1990). Appellant filed a motion to reconsider the dismissal of her Original Complaint, and Chrysler filed a motion to strike or dismiss the Amended Complaint. The district court denied appellant’s motion, and granted Chrysler’s motion by dismissing the Amended Complaint. The district court concluded that the Amended Complaint failed for the same reasons as the Original Complaint to state a claim under § 10(b) and Rule 10b-5. III. Standard and Scope of Review The class appeals the district court’s orders granting Chrysler’s Rule 12(b)(6) motion to dismiss the Amended Complaint, and denying appellant’s motion to reconsider the 12(b)(6) dismissal of her Original Complaint. We will review both orders in turn. We exercise plenary review in each instance. IY. The Requirement of a Material Misrepresentation in Private Actions Under Section 10(b) and Rule 1 Ob-5 Section 10(b) of the Exchange Act prohibits the use “in connection with the purchase or" }, { "docid": "23363822", "title": "", "text": "language during middle school, and higher-level courses in high school. Appellants’ expert calculated S.H.’s damages as $127,010, which includes two additional years of college tuition, 50 hours of psychotherapy, and 600 hours of tutoring. On June 30, 2011, the District Court granted the School District’s motion to dismiss Claim One. The District Court concluded that, because S.H. asserts that she is not disabled, she cannot be, for pleading purposes, “a ‘child with a disability’ and thus cannot seek relief under the IDEA.” Durrell ex rel. S.H. v. Lower Merlon Sch. Dist., No. 10-6070, 2011 WL 2582147, at *2 (E.D.Pa. June 30, 2011). On July 19, 2012, the District Court granted summary judgment in the School District’s favor as to the remaining RA and ADA claims. The District Court first ruled that, in order to sustain a claim seeking compensatory damages under the RA and ADA, a plaintiff must be able to show evidence of intentional discrimination on the part of the defendant. Durrell ex rel. S.H. v. Lower Merion Sch. Dist., No. 10-6070, 2012 WL 2953956, at *5-7 (E.D.Pa. July 19, 2012). The District Court then concluded that Appellants had produced no evidence creating a genuine dispute of fact as to intentional discrimination and granted summary judgment. Id. at *8 (“While we find any misidentification of S.H. unfortunate, plaintiffs have not come forward with any evidence which would allow a reasonable jury to find that the School District intentionally discriminated against S.H. when it regarded her as disabled.”). Appellants filed a timely appeal. II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court’s decision to dismiss a complaint under Rule 12(b)(6). Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012). In reviewing a dismissal, we “accept all well-pled allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party.” Brown v. Card Serv. Ctr., 464 F.3d 450, 452 (3d Cir.2006). To survive" }, { "docid": "23283722", "title": "", "text": "partially granted the defendants’ motion under Rule 12(b)(6) by dismissing the portion of the count alleging a reverse false claim because the District Court believed that 31 U.S.C. § 3729(a)(3) did not support that type of action. Also, the District Court dismissed the portion of the first count that was based on any activity prior to December 4, 1988, because of the FCA’s six-year statute of limitations. 31 U.S.C. § 3731(b)(1). In a later opinion, the District Court granted summary judgment to Penn Ship and Fidelity on the sole remaining FCA conspiracy claim after determining that no reasonable jury could conclude that Penn Ship and Fidelity formed an agreement to defraud the government. The District Court first noted that recovery under 31 U.S.C. § 3729(a)(3) requires a plaintiff to show (1) a conspiracy to get a false or fraudulent claim allowed or paid and (2) an act in furtherance of the conspiracy. Following an exhaustive review of Atkinson’s proffered evidence, the District Court concluded that the evidence fell short of establishing the required agreement. Atkinson filed a motion to reconsider which was denied on September 15, 2004. Atkinson then filed a timely notice of appeal. III. Jurisdiction and Standard of Review This action was brought under the FCA, 31 U.S.C. §§ 3729-33 (1988). The District Court determined that it lacked subject matter jurisdiction under 31 U.S.C. § 3730(e)(4) over all but a portion of the first count of the Third Amended Complaint. The District Court then dismissed the remainder of Atkinson’s action by way of summary judgment on July 28, 2004. We have jurisdiction over the District Court’s final order under 28 U.S.C. § 1291. We exercise plenary review of a District Court’s dismissal for lack of subject matter jurisdiction under the FCA. Stinson, 944 F.2d at 1152. Because we will dismiss all of Atkinson’s claims pursuant to the FCA’s jurisdictional bar, we have no occasion to review the District Court’s grant of summary judgment. There is disagreement among the parties as to the nature of the plaintiffs burden when faced with a Rule 12(b)(1) challenge to jurisdiction. Under Gould" }, { "docid": "23622301", "title": "", "text": "then denied these motions and ordered that Thompson file an amended complaint. On November 13, 2006, Thompson filed the First Amended Complaint, which added Jacoby as a co-plaintiff. The defendants again moved to dismiss, and on March 6, 2007, the district court dismissed the amended complaint without prejudice. On March 19, 2007, Thompson and Jacoby filed the Second Amended Complaint, raising claims for two putative classes: one, led by Thompson, which included all purchasers of securities through unregistered broker/dealers of RelationServe, and another, led by Jacoby, which included all purchasers who bought RelationServe stock on the open market prior to May 23, 2006. Defendants then moved to dismiss the Second Amended Complaint for failure to state a claim, and this time the district court granted the motion with prejudice, concluding Jacoby had failed to state a claim for a violation of either § 10(b) or § 20(a) of the Securities Act. The district court also dismissed without prejudice Thompson’s state law claims for lack of subject matter jurisdiction. Once before and twice after the district court dismissed the Second Amended Complaint, defendant Karp moved for Rule 11 sanctions and attorneys’ fees, contending the claims against her were frivolous and demonstrated an utter lack of legal or factual investigation. The district court denied the motions in three separate orders. This appeal and cross-appeal ensued. III. DISCUSSION Our discussion is divided into three parts. First, we address whether the Second Amended Complaint satisfies the standard for pleading scienter. Second, we address whether the Second Amended Complaint states a claim of secondary liability under § 20(a). Third, we address the district court’s refusal to impose Rule 11 sanctions and award attorneys’ fees. A. Scienter Pleading Requirements We review the grant of a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) de novo. Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276,1282 (11th Cir.2007). In Count I, Jacoby asserted a violation of § 10(b) of the Securities Act and SEC Rule 10b-5. Section 10(b) of the Securities Act makes it unlawful to “use or employ, in connection with the" }, { "docid": "23363823", "title": "", "text": "2953956, at *5-7 (E.D.Pa. July 19, 2012). The District Court then concluded that Appellants had produced no evidence creating a genuine dispute of fact as to intentional discrimination and granted summary judgment. Id. at *8 (“While we find any misidentification of S.H. unfortunate, plaintiffs have not come forward with any evidence which would allow a reasonable jury to find that the School District intentionally discriminated against S.H. when it regarded her as disabled.”). Appellants filed a timely appeal. II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court’s decision to dismiss a complaint under Rule 12(b)(6). Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012). In reviewing a dismissal, we “accept all well-pled allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party.” Brown v. Card Serv. Ctr., 464 F.3d 450, 452 (3d Cir.2006). To survive a motion to dismiss, a complaint must contain sufficient factual allegations that, when taken as true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A Rule 12(b)(6) motion should be granted when it appears to a certainty that no relief can be granted under any set of facts which could be proved.” Nichole Med. Equip. & Supply Inc. v. TriCenturion, Inc., 694 F.3d 340, 350 (3d Cir.2012). We review a district court’s grant of summary judgment de novo, applying the same standard as the district court. Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 257 (3d Cir.2012). A grant of summary judgment is appropriate where the moving party has established “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). A fact is material if it might affect the outcome of the suit under the governing law." }, { "docid": "23283717", "title": "", "text": "on the circumstances described above. That action was amended once and then dismissed without prejudice. Atkinson and Schorsch filed this, their second qui tam action, under seal on December 5, 1994. On June 5, 1997, co-relators filed an amended complaint adding Sun Ship as a defendant. The next day the government declined to intervene. Sun Ship and Fidelity filed separate motions to dismiss. On December 14, 1998, the District Court placed the action on the special management track, denied without prejudice the motions to dismiss, and ordered the co-relators to file a second amended complaint. Only Atkinson was named as a relator in the Second Amended Complaint. The defendants then moved to dismiss the Second Amended Complaint for failure to state a claim under Fed. R.Crv.P. 12(b)(6) and for failure to plead fraud with particularity as required by Fed.R.Civ.P. 9(b). The District Court dismissed all of Atkinson’s claims against Fidelity and Sun Ship and some of his claims against Penn Ship. Proceeding claim by claim, the District Court conducted a thorough analysis of all fourteen counts presented in the Second Amended Complaint. The District Court concluded that many of Atkinson’s counts were insufficiently particular under Rule 9(b) or simply failed to state a claim under Rule 12(b)(6) because, for example, they omitted a required element of a cause of action. All of the dismissals were without prejudice to allow Atkinson to file yet another amended complaint. The District Court cautioned Atkinson that amendments beyond that were unlikely to be permitted. Atkinson then filed the Third Amended Complaint which set forth twelve distinct counts and abandoned some counts asserted in the Second Amended Complaint. Only Penn Ship and Fidelity were named as defendants. They moved to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and under Fed. R.Civ.P. 12(b)(6) for failure to state a claim. The District Court turned its attention first to jurisdiction. As required by Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000), the District Court determined that it was dealing with a factual rather than facial challenge to jurisdiction because “it concerns" }, { "docid": "22253691", "title": "", "text": "against CSC in the United States District Court for the Eastern District of Pennsylvania on behalf of herself and all other similarly situated Pennsylvania consumers. In her complaint Brown alleged that the CSC Letter contained “false and misleading” statements “designed to coerce and intimidate the consumer ... by false threat” and that the complaint suggested a deadline for debtor action that was “false and overstated.” (Amend Compl. ¶¶ 11, 13, 15.) In support of this claim, Brown alleged that the 5-day deadline was illusory because CSC never intended to bring suit against her or to refer her debt — or that of the members of her putative class — to an attorney. In response to the complaint, CSC filed a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim under the Fair Debt Collection Practices Act (the “FDCPA” or the “Act”), 15 U.S.C. § 1692 et seq. The District Court granted the motion without prejudice in June of 2005. The District Court’s order dismissing the complaint, which was amended by a second order in August of 2005, granted Brown through the end of September to conduct further investigation so that she might amend her complaint, with the caveat that if she failed to do so, the June dismissal would automatically become a dismissal with prejudice. Brown opted not to amend her complaint, and the dismissal became final. This appeal followed. II. Jurisdiction and Standard of Review The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d). We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the grant of a motion to dismiss. Delaware Nation v. Pennsylvania, 446 F.3d 410, 415 (3d Cir.2006). When considering an appeal from a Rule 12(b)(6) dismissal, we must accept all well-pled allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. In re Rockefeller Ctr. Props. Sec. Litig., 311 F.3d 198, 215 (3d Cir.2002). In doing so, we must determine whether the" }, { "docid": "23226818", "title": "", "text": "filed motions to dismiss the Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for relief under section 1983. At a scheduling conference held after those motions were filed, the court expressed skepticism that the Second Amended Complaint set forth sufficient factual support for Judge’s allegation of racial animus. Nevertheless, the court denied the motions to dismiss without prejudice to their being renewed at a later date. Judge filed a Third Amended Complaint, in which she elaborated on the specific alleged omissions of the defendant officers and Dr. Feigin, and cited the Blount case. The defendants renewed their motions to dismiss for failure to state a claim, and the court granted the motions. The court denied Judge’s motion to reconsider and her motion for leave to file a Fourth Amended Complaint. Having dismissed the federal claims set forth in Counts I and II, the court declined to exercise supplemental jurisdiction over the two remaining state law causes of action (Counts III and IV) and dismissed them as well. II. DISCUSSION Judge argues on appeal that the district court erred in dismissing her Third Amended Complaint. We conclude that the district court properly dismissed Counts I and II of Judge’s Third Amended Complaint and, having done so, properly dismissed the remaining state law claims. Judge also challenges the denial of her motion for leave to file a Fourth Amended Complaint. We conclude that the court did not abuse its discretion in denying that motion. A. Dismissal of the Third Amended Complaint We review the disposition of a motion to dismiss de novo. See LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir.1998). Rule 8(a) provides that the complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). In an oft-quoted gloss, the Supreme Court stated over forty years ago that a complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would" }, { "docid": "22837309", "title": "", "text": "deduction. On May 26, 2010 Fleisher filed a Complaint in the United States District Court for the District of New Jersey, asserting individual and class claims for wrongful denial of benefits under ERISA, along with various state law claims. After Standard moved to dismiss the Complaint, Fleisher filed an Amended Complaint on September 8, 2010. After Standard moved to dismiss the Amended Complaint, Fleisher filed a Second Amended Complaint (“SAC”) on October 1, 2010. The SAC asserts three ERISA claims: breaches of fiduciary duty (Count I) and contract (Count III), both pursuant to § 502(a)(3), 29 U.S.C. § 1132(a)(3), and breach of contract pursuant to § 502(a)(1)(B) (Count II). The SAC seeks restitution for the deductions previously taken as well as injunctive relief to govern future deduction decisions. Standard moved to dismiss the SAC pursuant to Fed.R.Civ.P. 12(b)(6). On May 2, 2011, the District Court granted Standard’s motion. The District Court initially concluded that the benefits offset determination was governed by “the deferential abuse of discretion standard.” (A.14.) Applying that narrow standard of review, the Court held that Fleisher could not show that Standard’s decision reflected an unreasonable interpretation or application of the Standard Policy. The District Court recognized that there was a conflict of interest arising from the fact that Standard both paid benefits and made the offset decision, and that such a conflict had to be considered in deciding whether Standard had abused its discretion. It concluded, however, that Standard’s interpretation of pertinent policy provisions was not so close as to make the conflict of interest a determinative factor. The Court also dismissed Fleisher’s § 502(a)(3) claims for breaches of fiduciary duty and contract, concluding that Standard’s conduct was not improper. II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6). Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009). Accordingly, we must “ ‘accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and" } ]

[ { "docid": "19026491", "title": "", "text": "PER CURIAM: Robert James McLaurn, Jr. was convicted on the first count of a three count indictment and sentenced to confinement for eighteen months. The count under which he was convicted charged unlawful possession of a stolen government check. The counts under which he was acquitted charged that he caused a forged endorsement of the same check and caused the check to be uttered and published as true. On appeal McLaurn first challenges the sufficiency of the evidence. His contention is grounded on his acquittal of the charges contained in Counts Two and Three. McLaurn reasons that the jury must not have believed the evidence which supports those counts and that there is not enough other evidence to support his conviction under Count One. The argument misapprehends the principles which govern our review. In United States v. Fuiman, 546 F.2d 1155, 1157-1158 (5th Cir. 1977), cert. denied, 434 U.S. 856, 98 S.Ct. 176, 54 L.Ed.2d 127 (1977), we said, With respect to the inconsistency of the jury’s verdict, it is well established that inconsistent verdicts on a multi-count indictment do not per se invalidate a jury’s findings. As Mr. Justice Holmes wrote in Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), “[cjonsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.” Thus, as a general proposition, if a jury has convicted a defendant on one count of an indictment, and the government has adduced evidence legally sufficient to convict the defendant on that count, then whatever the jury did with the remaining counts is immaterial to the appellate inquiry. And this is no less true in a situation where there is a logical inconsistency when the jury’s findings on all the counts of the indictment are considered as a whole. See, e. g., United States v. Stiglets, 463 F.2d 242 (5th Cir. 1972). The evidence before us is not only sufficient, it is overwhelming. McLaurn also contends that a supplemental instruction lacked balance. Whatever merit, if any, that this contention might" } ]

[ { "docid": "23059682", "title": "", "text": "eligible. There is no reason to suppose that evidence of the carjacking, which was death eligible, was more prejudicial than evidence of the murder, which was not. Mitchell finally argues that the rejoining of counts so late in the game prejudiced him. We fail to see how. Mitchell was himself responsible for the late decision, having moved for the first time to introduce prejudicial evidence against his code-fendant only three business days before jury selection was to begin. That prompted the district court to sever Orsinger from Mitchell, and the prospect of having four separate trials prompted the decision to rejoin all of Mitchell’s counts. In sum, joinder of the robbery and murders counts was permissible and declining to sever them was not “manifestly prejudicial” because they were, in fact, related, and the evidence would have come in anyway. B Mitchell complains that the government committed two discovery violations affecting the guilt phase. We review the district court’s discovery rulings for abuse of discretion. United States v. Danielson, 325 F.3d 1054, 1074 (9th Cir.2003). For reversal, the defendant must show that the district court abused its discretion, and that “the error resulted in prejudice to substantial rights.” United States v. Amlani, 111 F.3d 705, 712 (9th Cir.1997). No plain error appears with respect to his first contention, that he was not given the questions or answers to the polygraph examination. Mitchell did move for a mistrial when the government sought to introduce anatomical drawings to aid in the medical examiner’s testimony. However, counsel acknowledged that he had been told that diagrams were being made and the district court offered a break, which counsel accepted. In these circumstances, Mitchell’s substantial rights were not affected, nor did the court abuse its discretion in denying a mistrial. C Mitchell finds various violations of the Confrontation Clause in the record. We do not. We review the district court’s construction of a hearsay rule de novo, and its exclusion of evidence under a hearsay rule for abuse of discretion. United States v. Ortega, 203 F.3d 675, 682 (9th Cir.2000). Alleged violations of the Confrontation Clause" }, { "docid": "23059681", "title": "", "text": "that there is no manifest prejudice in such circumstances); United States v. Kenny, 645 F.2d 1323, 1345 (9th Cir.1981) (same). The carjacking on October 28 provided the get-away vehicle for the robbery on October 31. The two sets of crimes were part of a common plan or scheme, rendering evidence of one legally relevant as to the other; as the crimes are correlated, knowing about one helps explain the other and so makes it more likely. Mitchell also faults the court for failing explicitly to conduct a Federal Rule of Evidence 403 analysis in determining whether evidence on one set of charges would have been admissible in a trial on the other. However, the court found that limiting instructions (which it gave) would ameliorate the risk of unfair prejudice. Mitchell does not argue this is incorrect. Further, Mitchell suggests, without supporting authority, that severance was required because the carjacking count was death eligible. But the potential for prejudice turns on the factual evidence relating to that count, not on whether a given count is death eligible. There is no reason to suppose that evidence of the carjacking, which was death eligible, was more prejudicial than evidence of the murder, which was not. Mitchell finally argues that the rejoining of counts so late in the game prejudiced him. We fail to see how. Mitchell was himself responsible for the late decision, having moved for the first time to introduce prejudicial evidence against his code-fendant only three business days before jury selection was to begin. That prompted the district court to sever Orsinger from Mitchell, and the prospect of having four separate trials prompted the decision to rejoin all of Mitchell’s counts. In sum, joinder of the robbery and murders counts was permissible and declining to sever them was not “manifestly prejudicial” because they were, in fact, related, and the evidence would have come in anyway. B Mitchell complains that the government committed two discovery violations affecting the guilt phase. We review the district court’s discovery rulings for abuse of discretion. United States v. Danielson, 325 F.3d 1054, 1074 (9th Cir.2003). For" }, { "docid": "15084525", "title": "", "text": "The basis of appellant’s contention is the trial court’s expression of regret that Row-en would not admit her guilt after the trial was over and she had been found guilty. The incident occurred during the sentencing proceedings. Rowen received concurrent six months sentences on the first two counts and suspended sentences with five years probation on the remaining counts. Consideration of this issue must begin with our reaffirmation of the principle that the exercise by the sentencing court of its discretion cannot be questioned on appeal, except when arbitrary or capricious action amounting to a gross abuse of discretion is involved. United States v. Weiner, 418 F.2d 849, 851 (5th Cir. 1969). Rowen does not contend that the trial judge undertook to coerce a guilty plea by threat of a more severe sentence as was contended in United States v. Herron, 551 F.2d 1073 (6th Cir. 1977) on which she relies. Neither do we view the facts as being so extreme as those in Thomas v. United States, 368 F.2d 941 (5th Cir. 1966) where this court exercised its supervisory authority to require resentencing of a defendant who had received a maximum twenty-five year sentence after failing to respond to the trial court’s exhortation that he “make a clean breast of this thing for once and for all.” Rowen voluntarily testified on her own behalf and denied any guilt. The sentence she received was comparatively lenient. As the factual issues developed in this case it was clear that either defendant was responsible for the issuance and cashing of the checks or someone else did it. The jury was confronted with questions in stark black and white. There were no shades of gray. When the time came for sentence to be passed Rowen had been found guilty beyond a reasonable doubt on the basis of evidence that was clearly sufficient. The trial judge was not obliged to shut her mind to what she had seen and heard during the progress of the trial. The quest for just punishment under our system contemplates the contrary. The trial judge had heard Rowen testify" }, { "docid": "18063354", "title": "", "text": "vehicles. All eight defendants entered a plea of not guilty and all, except McLendon, were tried. Mitchell, Daniels and Goodwin were represented by counsel at the trial. Finley represented himself. The lengthy trial concluded, defendants’ motions for acquittal denied, and the case sent to the jury, all the defendants were found guilty as charged. Mitchell was sentenced on each of the three counts, the sentences to run concurrently, and Finley, Goodwin, and Daniels were sentenced on the conspiracy count as follows: Finley to five years; Goodwin to two years, to begin at the expiration of a Georgia state sentence then being served; Daniels to two years. Finley filed a motion in arrest of judgment and a motion for a new trial, both of which were overruled, and Finley, Goodwin, Daniels and Mitchell gave notice of appeal, and each was allowed to, and did, appeal in forma pauperis. None of the appellants are represented by attorneys on this appeal. Appellants’ brief, with the assent of all appellants, is signed by Finley as counsel for appellants, and, in 112 typewritten pages, it presents and argues eighteen specifications of error, including therein the denial by the trial court of defendants’ motions for directed verdict. Considering first, because it goes not merely to the reversal but also to the rendition of the judgment, appellants’ Specification No. 17, that it was error to deny the defendants’ motions for judgment of acquittal, it is sufficient to say, as to Mitchell and the substantive counts two and three, on which he was convicted, that the record fully and completely supported the verdict on these counts, that, indeed, no contrary claim is made in the brief. Its whole argument on this specification is directed to an attack upon the motions for directed verdict as to the conspiracy count. With respect to that count, without undertaking to narrate any of the testimony of the nearly ninety witnesses, it is sufficient for its disposition to say that the voluminous testimony in the record of more than 1000 pages points directly and convincingly, indeed conclusively, to the existence of a conspiracy," }, { "docid": "20713454", "title": "", "text": "aware of the high probability that the law firm received money from the VAS contracts which was the result of bribes or gratuities being extended to Frank Russo, and that the defendant deliberately closed his eyes to what was obvious. Carelessness or negligence or foolishness on his part is not the same as knowledge and is not enough to convict. This, of course, is all for you to decide. The jury returned a general verdict of guilty on both counts. A presentence investigation report (“PSR”) was then prepared. The PSR calculated Mr. Mitchell’s base offense level as 12. Two levels were added because the offense involved more than one bribe. Sixteen levels were added because Mr. Mitchell received over $1,000,000 in return for the payments to the public official. Finally, four levels were added because the offense involved a bribe to an elected official. Then, two levels were subtracted for Mr. Mitchell’s role in the offense being minor. Therefore, the PSR concluded that Mr. Mitchell’s adjusted offense level was 32. Because his criminal history category was I, the PSR concluded his guidelines range was 121-151 months’ imprisonment. The PSR noted, however, that the conspiracy count carried a statutory maximum of 60 months and that the bribery count carried a statutory maximum of 120 months. At his sentencing hearing, Mr. Mitchell objected that his two-level reduction for a “minor” role actually should have been a four-level reduction because his role was “minimal.” The Government consented to the four-level reduction “[i]n order to be consistent with” Armstrong’s sentence. Although the district court did not believe “that either of these two gentlemen were really minimal participants,” it accepted the concession to minimize any disparity between Armstrong’s and Mr. Mitchell’s sentences. Mr. Mitchell also requested a departure under U.S.S.G. § 5H1.6 based on his “family ties and responsibilities.” He noted that his wife had undergone two surgeries for breast cancer, had no medical insurance, owed $250,000.00 in medical bills and is unemployable. He further noted that he and his wife were in bankruptcy. The district court determined that such a departure was not warranted" }, { "docid": "12441276", "title": "", "text": "7 through 9 charged Haldeman with three instances of making false statements before the Select Committee. Counts 10 through 12 alleged that Ehrlichman had made false statements, once to the FBI and twice before the grand jury. Finally, Count 13 charged Strachan with making a false statement to the grand jury. J.A. 65-112. . The charges against Strachen were later dismissed pursuant to Fed.R.Crim.P. 48(a). . See note 3 supra. Counts 3 and 10, charging Mitchell and Ehrlichman respectively with false statements to FBI agents, had been dismissed by the court at the close of the Government’s case. . Mardian received a sentence of 10 months to three years in prison. Mitchell, Haldeman, and Ehrlichman were sentenced to concurrent terms of 20 months to five years on Counts 1 and 2, and to concurrent terms of 10 months to three years on each perjury count on which they were convicted. The perjury sentences were to run consecutive to the sentences for conspiracy and obstruction of justice, making a total of two and a half to eight years in prison for each of these three defendants. . The statement of facts in Part I of this opinion gives a general summary of the evidence against all four individuals. Mardian’s appeal, however, was argued separately before this court and is treated in a separate opinion issued today. United States v. Mardian, 178 U.S.App.D.C. 207, 546 F.2d 973.. . Since none of the three appellants challenges the sufficiency of the evidence to sustain the jury verdict, we summarize here only the major events of the conspiracy. Moreover, it is well settled that on appeal we are to set forth the evidence in the light most favorable to the jury’s verdict. United States v. Clayborne, 166 U.S.App.D.C. 140, 142, 509 F.2d 473, 475 (1974). See, e. g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. DeLoach, 174 U.S.App.D.C. 38, 39-40 & n.2, 530 F.2d 990, 991-992 & n.2 (1975). . The burglars were James McCord, Bernard Barker, Eugenio Martinez, Virgilio Gonzalez, and Frank Sturgis." }, { "docid": "23243821", "title": "", "text": "since he was charged in only two of the nineteen counts in the indictment, he was prejudiced by the disparity between the evidence against him and the evidence against his co-defendants. We rejected a similar argument in United States v. Grabiec, 563 F.2d 313 (7th Cir. 1977), in which we held: Although the evidence of culpability was clearly proportionately greater against [co-defendant] Wall than Grabiec, we have pointed out earlier that there was sufficient evidence for a jury to have convicted Grabiec. Also, we have emphasized that the jury was repeatedly instructed to consider evidence regarding other transactions only as it applied to Wall. Under these circumstances, the denials of Grabiec’s requests for severance were not errors. 563 F.2d at 319. The considerations found controlling in Grabiec are equally applicable to this case. As stated earlier, there was sufficient evidence to support the jury’s verdicts against Karnick. Furthermore, the jury was repeatedly instructed to consider evidence introduced on the other counts only against the defendants charged in those counts. Finally, the jury’s verdict of acquittal for appellant Jercich on Count Twelve of the indictment reflects its adherence to those admonitory instructions. B. Sentencing Karnick also appeals from the sentence imposed by the district court on the grounds that the court abused its discretion in unduly emphasizing the deterrent effect upon others of the appellant’s incarceration. The sentencing function has traditionally been considered to be within the exclusive province of the trial court, and the exercise of that discretion “will not be disturbed on appeal except on a plain showing of gross abuse.” United States v. Willard, 445 F.2d 814, 816 (7th Cir. 1971) (citation omitted). An examination of the trial court’s remarks at sentencing reveals no abuse of the court’s discretionary role. The court indicated that in arriving at sentences he had weighed three factors: (1) the possibility of rehabilitation; (2) the societal interest in retribution; and (3) the deterrence of others. These factors were endorsed by the Supreme Court in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Consideration of these factors with" }, { "docid": "1380052", "title": "", "text": "shoe at the time of his arrest. Second, the district court erred in admitting testimony about Mitchell’s silence after being accused of giving false information to the police. Third, the evidence was insufficient to support a verdict of guilty on count II, the concealment charge. Fourth, the trial court erred in instructing the jury that it might infer guilty knowledge from the unexplained possession of recently stolen property, because the evidence in this case did not justify the giving of such an instruction. I. Admissibility of Evidence. Appellant Mitchell contends that a police officer’s testimony that a map was found in Mitchell’s shoe at the time of his arrest was irrelevant, and thus inadmissible under Federal Rule of Evidence 402. The district court directed the prosecutor not to make further reference to the map, but refused to grant a mistrial because of the testimony. The judge also refused to give a cautionary instruction to the jury, stating that to do so would “simply be placing something in the jury’s mind that is not now there.” The district judge has broad discretion in ruling on the relevance of evidence. Assuming, for purposes of argument, that the district court abused its discretion in declining to exclude this testimony, the error was harmless. We also believe that the district court clearly did not abuse its discretion by overruling appellant’s mistrial motion and refusing a cautionary instruction. The brief reference to a hand-drawn map found in Mitchell’s shoe was made only once on direct examination, and thereafter the trial court barred the prosecutor from further inquiry relating to the map. Under these circumstances, the admission of the statement was not so prejudicial as to require a mistrial. See, e. g., United States v. Graham, 548 F.2d 1302, 1313 (8th Cir. 1977); United States v. Quinn, 543 F.2d 640, 649 (8th Cir. 1976). Similarly, the judge’s refusal to give a cautionary instruction, out of concern that such an instruction would emphasize the issue in the minds of jurors, did not constitute an abuse of the court’s discretion. Mitchell contends that the district court also erred" }, { "docid": "22254217", "title": "", "text": "in order to establish that a vehicle was stolen. See United States v. Gresham, 585 F.2d 103 (5th Cir.1978) (upholding Dyer Act conviction without testimony of owner of vehicle). Moreover, Murphy’s reliance on United States v. Shiver, 414 F.2d 461 (5th Cir. 1969), is unconvincing because the evidence here is far more complete that the vehicle was stolen. B. Did Buhajla know the plane was stolen? We think the evidence supports the conclusion that Buhajla knew the plane was stolen. We agree wholeheartedly with Buhajla that “the mere presence of an individual in the vicinity of stolen goods is not sufficient in itself to support a conviction.” United States v. Henderson, 524 F.2d 489, 491 (5th Cir.1975). We disagree, however, that the Government’s evidence merely establishes that a stolen plane was located on Buhajla’s property. Buhajla ignores the testimony of Wells that Buhajla was intimately involved with Murphy and was paid handsomely for storing the plane. Buhajla disputed this version of the story but “[w]e are particularly loath to reject a jury’s verdict when it is manifestly dependent on credibility assessments.” United States v. Kimble, 719 F.2d 1253, 1256 (5th Cir.1983), cert. denied, - U.S.-, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984). VII. SENTENCING. Finally, Buhajla argues that the two-year sentence he received on count one is unduly harsh. A strict standard governs our review of this claim: “Absent an illegal sentence or a gross abuse of the trial judge’s broad discretion, we will not disturb a sentence on appeal.” United States v. Robinson, 700 F.2d 205, 214 (5th Cir. 1983) (quoting United States v. Noll, 600 F.2d 1123, 1130 (5th Cir.1979)). Buhajla must show that the district court relied on materially untrue information or abused its discretion. United States v. Garcia, 693 F.2d 412 (5th Cir.1982). The two-year sentence Buhajla received is well within the five-year maximum authorized for Dyer Act violations. See 18 U.S.C. § 2312. Since he alleges no fact which would indicate that the trial judge abused his discretion, we can afford him no relief. His conclusory pleas for leniency are more appropriately addressed to the" }, { "docid": "9825647", "title": "", "text": "FDIC, all in violation of 18 U.S.C. §§ 371 and 2113(a). As the manner and means of the conspiracy, the government alleged that the defendants obtained information concerning bank procedures from co-conspirator Smith, who was employed at the Bank of America. With respect to the indictment returned against the defendants, Count One charged all five co-defendants with conspiracy to commit bank robbery, in violation of 18 U.S.C. §§ 371 and 2113(a); and Count Two charged all five with aiding and abetting bank robbery and using a dangerous weapon in the commission of the offense, in violation of 18 U.S.C. §§ 2, 2113(a), and 2113(d). Sullivan, Graves, and Lewis pleaded guilty, and pursuant to their plea and cooperation agreements, Graves and Lewis testified on behalf of the government during the jury trial of Appellants Smith and Mitchell. On May 8, 1998, the jury returned its verdict, finding Smith guilty on Counts One and Two and Mitchell guilty on Count One only. Smith was sentenced to a 60-month term of imprisonment for Count One and a 175-month term of imprisonment for Count Two, both sentences to be served concurrently, followed by a three-year term of supervised release on Count One and a concurrent five-year term of supervised release on Count Two. Mitchell received a 60-month term of imprisonment, followed by a three-year term of supervised release. Both appellants, along with their convicted co-defendants were jointly and severally ordered to pay $68,-417 in restitution to the Bank of America, with fines being waived based on the defendants’ inability to pay. II. DISCUSSION The appellants have each raised numerous issues, several of which overlap one another. We will'address the various issues below, roughly in a chronological sequence, with trial matters addressed first and sentencing matters addressed last. A. Sufficiency of the Evidence Mitchell argues that the evidence presented to the jury was insufficient to support her conviction. The standard of review for a sufficiency of evidence claim is whether, after viewing the evidence and the reasonable inferences which - flow therefrom in the light most favorable to the verdict, any rational trier of fact" }, { "docid": "5789165", "title": "", "text": "and convicted Mitchell on counts 1 through 5 and 19, but acquitted him on counts 17 and 18. The jury acquitted Allen on all counts. On March 22 and 23, 1994, the district court held a sentencing hearing. On April 29, it sentenced Eddie to 151 months in prison and ordered him to pay $121 million in restitution. The court sentenced Mitchell to 51 months in prison and ordered him to pay $3 million in restitution. Eddie and Mitchell timely filed notices of appeal, challenging both their convictions and their sentences. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. II. Analysis A. Duty to Recuse The appellants argue that the district court should have disqualified itself sua sponte pursuant to 28 U.S.C. § 455. In response, the government, relying on the failure of the appellants to make a recusal motion in the district court, contends that the argument is untimely and that we should not consider it. However, our precedent clearly establishes that under this statutory provi sion, which contains no explicit timeliness requirement, even when such motions are not made in the district court, we can exercise review over a district judge’s failure to re-cuse. The standard of review does, though, change. Thus, “where no objection to the district court’s failure to recuse was made at trial, a plain error standard of review applies.” United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir.1983) (citing United States v. Schreiber, 599 F.2d 534 (3d Cir.), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (1979)). The plain error doctrine derives from Federal Rule of Criminal Procedure 52(b) which provides that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” When a party makes a recusal motion at trial, a district court’s failure to recuse is reviewed for abuse of discretion. A conviction may be reversed under the plain error doctrine only when “[tjhere [was] an ‘error’ that is ‘plain’" }, { "docid": "23513621", "title": "", "text": "grand jury by preventing further inquiry into the circumstances surrounding the threats to Caccamo. Taylor’s motion for acquittal on Count X was, therefore, properly denied. Appellant Taylor’s final contention concerns the element of intent involved in false swearing. He argues that his motion for judgment of acquittal on Count X should have been granted because the government failed to prove that the false statement was knowingly and intentionally made. The issue of intent is to be decided from objective and circumstantial evidence. Communications Association v. Douds, 339 U.S. 382, 411, 70 S.Ct. 674, 94 L.Ed. 925 (1950). Simply put, the jury did not buy Taylor's explanation of the circumstances. We will not disturb that finding. X. MATASSINI’S SENTENCE Matassini contends that his sentence, although within the limits prescribed by statute, should be vacated by this Court exercising its supervisory power, because the sentence is more severe than that received by codefendants Cuesta and Lauro. Matassini’s argument is based on the fact that the indictment cast all three in a similar role in the conspiracy. We reject this contention since the sentence is within the statutory limits and Matassini has demonstrated no abuse of discretion which would entitle him to relief. See, e. g., United States v. Hayes, 589 F.2d 811, 827 (5th Cir. 1979); United States v. Deaton, 477 F.2d 65 (5th Cir.), cert. denied, 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76 (1973); United States v. Johnson, 476 F.2d 1251, 1258 (5th Cir. 1973). CONCLUSION Finding all the verdicts amply supported by sufficient evidence and the alleged er rors without merit, the convictions are affirmed. Affirmed. . Lauro does not here appeal his conviction. . The trial of Pasquale Matassini on Count II was severed from that of his co-indictees. Matassini was subsequently acquitted of that charge. . Taylor was acquitted on Count IX. . Count II of the indictment reads: COUNT TWO From on or about January 1, 1976, and continuing to on or about the date of the return of this indictment, at Tampa, Florida, in the Middle District of Florida and elsewhere, WILLIAM L. TAYLOR;" }, { "docid": "22853445", "title": "", "text": "the testimony against Duford Mitchell alone and not against Keyon Mitchell. Keyon Mitchell asserts that Sims was a key witness against him, and he opines that the assault greatly prejudiced him because it bolstered Sims’s credibility and caused him to be sympathetic to the jury. He argues that it was error for the trial court to have continued with the joint trial after the assault. We conclude that Keyon Mitchell has not made the specific showing of sufficiently compelling prejudice required to demonstrate an abuse of discretion. The most damaging witnesses against Keyon Mitchell were Jeffrey and Robinson, not Sims. There were numerous other witnesses who testified that Keyon Mitchell sold them crack cocaine. Even if the assault on Sims had prejudiced Keyon Mitchell, the trial court did not abuse its discretion by determining that the prejudice could be adequately minimized by limiting instructions, obviating the need for severance or a new trial. VI. FORECLOSED ARGUMENTS Duford Mitchell also presents other arguments that he concedes have been foreclosed by precedents of this court and of the Supreme Court. He makes these arguments solely to preserve them for further review. First, he argues that the district court erred by enhancing his United States Sentencing Guidelines offense level based on facts not found by a jury but rather found by a judge by a preponderance of the evidence. This includes an objection to the court’s determination of his criminal-history category. As he concedes, the argument is foreclosed by United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). Second, he argues that the district court erred by relying upon hearsay statements in the presentence report without giving him an opportunity to confront the individuals who made the statements. As he concedes, this argument is foreclosed by United States v. Navarro, 169 F.3d 228, 236 (5th Cir.1999) (“[Tjhere is no Confrontation Clause right at sentencing ... (citing Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir.1996), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997))). VII. CONCLUSION For the foregoing reasons, we AFFIRM the defendants’ convictions on count" }, { "docid": "23365667", "title": "", "text": "that he had sold the pickup to Jose Gutierrez Gonzales, and that he was now borrowing it. Clearly, Ruben claims a lack of guilty knowledge. And considering the entire record, we cannot fairly say that it does not support an inference of deliberate indifference. Therefore, the trial court did not abuse its discretion when it gave the deliberate ignorance jury instruction. 2. S3 There was sufficient evidence to prove Ruben had knowledge that there was marijuana in the pickup and participated in the conspiracy. Ruben contends that there was insufficient evidence to convict him on counts one and two. Since he presented evidence on his behalf during his case-in-chief and failed to renew his motion for acquittal at the close of all the evidence, we consider the entire record and review the evidence de novo. See Section 2.1 supra. Viewing all of the evidence in the light most favorable to the verdict, including all reasonable inferences and credibility choices, there is substantial evidence from which a rational trier of fact would have to find Ruben guilty on counts one and two beyond a reasonable doubt. 3. Conclusion For the reasons stated above, we Affirm Ruben’s convictions for counts one, two, and three; Affirm Llama’s conviction for count three; and Reverse Sergio’s conviction for count three, Vacate the corresponding sentence, Vacate the two-offense level increase, and Remand for re-sentencing. . In the parties respective briefs, there was some confusion as to whether the Appellants renewed their motions for acquittal at the close of all the evidence. It is clear, however, from a review of the record that they did, and the government conceded so at oral argument. See Sup. R. Vol. 4 at 94 (District Court stating “[l]et the record reflect that each attorney timely made a motion for acquittal after [all] the evidence closed.”). . We do not hold Sergio criminally culpable for Ruben and Llama's actions because a Pinkerton instruction, Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946), was not given. See United States v. Garcia, 242 F.3d 593, 596 n." }, { "docid": "9825648", "title": "", "text": "term of imprisonment for Count Two, both sentences to be served concurrently, followed by a three-year term of supervised release on Count One and a concurrent five-year term of supervised release on Count Two. Mitchell received a 60-month term of imprisonment, followed by a three-year term of supervised release. Both appellants, along with their convicted co-defendants were jointly and severally ordered to pay $68,-417 in restitution to the Bank of America, with fines being waived based on the defendants’ inability to pay. II. DISCUSSION The appellants have each raised numerous issues, several of which overlap one another. We will'address the various issues below, roughly in a chronological sequence, with trial matters addressed first and sentencing matters addressed last. A. Sufficiency of the Evidence Mitchell argues that the evidence presented to the jury was insufficient to support her conviction. The standard of review for a sufficiency of evidence claim is whether, after viewing the evidence and the reasonable inferences which - flow therefrom in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ■ See United States v. Jones, 185 F.3d 459, 464 (5th Cir.1999) (citing Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); United States v. Mulderig, 120 F.3d 534, 546 (5th Cir.1997), cert. denied, 523 U.S. 1071, 118 S.Ct. 1510, 140 L.Ed.2d 664 (1998). In reviewing a sufficiency of evidence claim for conspiracy to commit bank robbery, we are guided by the following principles set forth in United States v. Burton, 126 F.3d 666 (5th Cir.1997): “The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence.” United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.1994). The standard of review is the same regardless whether the evidence is direct or circumstantial. United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir.1993). To establish a conspiracy under 18 U.S.C. § 371, the Government must" }, { "docid": "22167478", "title": "", "text": "McEachern’s statements about McRae’s violent propensities were not made in response to government interrogation, nor was McEachern acting as a government agent when he heard McRae’s statements. The district therefore did not abuse its discretion by admitting the testimony over McRae’s 16(a)(1)(A) objection. V. At the sentencing hearing, Keisha Carter was sentenced to consecutive prison terms of five and twenty years based upon her convictions for two violations of 18 U.S.C. § 924(c)(1), which makes it a federal crime to use or carry a firearm during or in relation to a drug trafficking crime. See United States v. Mitchell, 104 F.3d 649, 652 (4th Cir.1997). Both counts of conviction (Counts 5 and 6) were based on the same predicate drug trafficking crime: namely, the conspiracy offense alleged in Count One. Carter filed a motion pursuant to Federal Rules of Criminal Procedure 29 and 33, seeking a judgment of acquittal or a new trial. Carter argues that she may not be sentenced to multiple terms for two section 924(c) offenses that arose from a single underlying predicate drug trafficking offense. This is a question of law subject to de novo review. See United States v. Campbell, 977 F.2d 854 (4th Cir.1992). A number of other circuits have adopted the position the defendant now urges on the Fourth Circuit. But we have already reached the issue and decided it in a manner contrary to defendant’s position. See United States v. Camps, 32 F.3d 102, 106 (4th Cir.1994), cert. denied, 513 U.S. 1158, 115 S.Ct. 1118, 130 L.Ed.2d 1082 (1995). Because Camps is dispositive, defendant’s argument is a non-starter. VI. Carter raises yet another argument relating to her § 924(c) conviction. To recapitulate, § 924(c) criminalizes the use or carrying of a firearm in relation to an underlying, predicáte drug trafficking offense. See Mitchell, 104 F.3d at 652. Count One of the indictment against Keisha Carter charged her with the predicate drug trafficking offense. Count Five charged her with the § 924(c) firearm offense arising from the underlying drug trafficking offense in Count One. The jury was unable to reach a verdict on" }, { "docid": "5702343", "title": "", "text": "HUG, Circuit Judge: Walter Mitchell appeals his convictions for mail fraud, 18 U.S.C. § 1341, and for filing a false income tax return, 26 U.S.C. § 7206(1). The indictment charged that Mitchell, who had been a member of the city council of Redondo Beach, California, had used his position to secure the council’s approval of a condominium conversion project. The indictment further charged that, in return for his support of the project, Mitchell received more than $100,-000 from the project’s owner, Robert Ferrante. It was alleged that Mitchell .had used the mails to defraud the citizens of Redondo Beach, the members of the city council, and the city planning commission by concealing both that Ferrante had an interest in the project and that Mitchell would profit from the approval. Finally, the indictment charged that Mitchell failed to report as income the money he had received from Ferrante in return for his support of the project. The jury convicted Mitchell on six counts of mail fraud and one count of filing a false tax return. It acquitted Mitchell on four counts of mail fraud and reached no verdict on three remaining counts. We affirm the convictions. I Mitchell contends that the indictment was subject to dismissal because it failed to charge an offense. To charge a violation of 18 U.S.C. § 1341, the indictment was required to allege facts from which two elements could be found: (1) the formation of a scheme or artifice to defraud, and (2) use of the mails in furtherance of the scheme. United States v. Buckley, 689 F.2d 893, 897 (9th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983); United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980). Mitchell argues that the indictment did not allege that the mailings were made in furtherance of the scheme. Mitchell was convicted on six counts of mail fraud. Count 5 was based upon a notice sent by the planning commission to the owner of the apartment complex to advise him that" }, { "docid": "15084524", "title": "", "text": "the institution holds BEOG funds in trust. It is authorized to make payments only upon receipt from HEW of item-by-item authorizations. Our statement in Evans is equally applicable: Here the monies have a federal origin and a federal end, and during their outstanding circulation they are subject to extensive federal controls. 572 F.2d at 474. The trial judge unequivocally instructed the jury that the federal character of the stolen funds was an essential element which the government was required to prove beyond a reasonable doubt. The character of the funds on deposit in account 09-0162-9 was not significantly altered by excessive BEOG withdrawals. The remaining funds against which these withdrawals were made were also federal. We conclude that the evidence supported the jury’s finding on this element of the offense. II Rowen also argues that the district court erred in sentencing her to the penitentiary because she would not admit that she committed the offense. She contends that it is a due process violation to penalize her for refusing to plead guilty or admit guilt. The basis of appellant’s contention is the trial court’s expression of regret that Row-en would not admit her guilt after the trial was over and she had been found guilty. The incident occurred during the sentencing proceedings. Rowen received concurrent six months sentences on the first two counts and suspended sentences with five years probation on the remaining counts. Consideration of this issue must begin with our reaffirmation of the principle that the exercise by the sentencing court of its discretion cannot be questioned on appeal, except when arbitrary or capricious action amounting to a gross abuse of discretion is involved. United States v. Weiner, 418 F.2d 849, 851 (5th Cir. 1969). Rowen does not contend that the trial judge undertook to coerce a guilty plea by threat of a more severe sentence as was contended in United States v. Herron, 551 F.2d 1073 (6th Cir. 1977) on which she relies. Neither do we view the facts as being so extreme as those in Thomas v. United States, 368 F.2d 941 (5th Cir. 1966) where" }, { "docid": "23212361", "title": "", "text": "offense (a violation of 18 U.S.C. § 924(c)(1), Count 3). After a jury trial, he was convicted of Counts 1 and 2 and acquitted of Count 3. Juarez-Ortega was sentenced to seventy-six months on each of the two counts, to run concurrently, followed by a term of five years supervised release. If Juarez-Ortega is deported the release is to be unsupervised; if he is not deported, the court imposed 200 hours of community service on each count. Juarez-Ortega’s codefendant DeLuna was convicted of the two distribution counts and the firearms count (§ 924(c)(1)). He was also sentenced to concurrent sentences of seventy-six months. II Juarez-Ortega’s sentence on each of the two counts, although exceeding the guidelines and the recommendation of the pre-sentence report, was within the statutorily permissible limits. This court will generally not review the severity of a sentence imposed within statutory limits, “and the trial court’s broad discretion in determining the appropriateness of a sentence will not be disturbed absent a finding of arbitrary or capricious action resulting in a gross abuse of discretion.” United States v. Adi, 759 F.2d 404, 411 (5th Cir.1985). Furthermore, the court may properly consider past crimes, including those for which a defendant has been indicted but not convicted, as well as the factual basis of dismissed counts. See United States v. Johnson, 823 F.2d 840, 842 (5th Cir.1987). Prior convictions overturned on appeal may be considered. See United States v. Butler, 680 F.2d 1055, 1056 (5th Cir.1982). In the instant case, Juarez-Ortega is challenging the use by the sentencing judge of the facts surrounding his possession of a firearm even though he was acquitted of that offense. Those facts are not disputed as false or unreliable; rather, the appellant is arguing that the judge used those facts to impose on Juarez-Ortega the same sentence imposed on his code-fendant. The following colloquy occurred between the sentencing judge and defense counsel regarding the basis for Juarez-Ortega’s sentence. THE COURT: The jury could not have made — the jury could not have listened to the instructions. MR. BARROSO: Your Honor,— THE COURT: The testimony was" }, { "docid": "46869", "title": "", "text": "HAYS, Circuit Judge: Appellants Rothman and De Cristofaro were convicted in the United States District Court for the Southern District of New York after a jury trial of conspiracy to transport and transportation of stolen securities in interstate and foreign commerce, and possession of securities stolen from interstate commerce and the mail, in violation of 18 U.S.C. §§ 371, 2314, 1708, and 659 (1970). Appellant Rothman was convicted of conspiracy and six substantive counts, and sentenced to concurrent prison terms of five years on each count. Appellant De Cristofaro was convicted of conspiracy and two substantive counts, and sentenced to concurrent terms of three years on each count. Appellants do not contest the sufficiency of the evidence to support the convictions. They contend, however, that the trial judge erred in failing to instruct the jury that a guilty plea of a codefendant is inadmissible as evidence of appellant’s guilt. In addition, appellant Rothman contends that the district court erred in granting the government’s pre-trial motion to compel appellant to furnish handwriting exemplars. For the reasons set forth below, we affirm the convictions. I. During the opening statement to the jury, the prosecuting United States attorney said: “The defendants, Norman Rothman and Fabio De Cristofaro, are charged, along with Lawrence Mitchell and Chester Gray, with conspiring to transport approximately $3,000,000 of stolen securities across state lines and to Europe. They are also charged with causing the transportation of certain stolen securities across state lines. Chester Gray and Lawrence Mitchell have already pleaded guilty to conspiring with these defendants.” At that point defense counsel objected generally to the statement and asked the court to declare a mistrial, which request was denied. During the trial the government called both Mitchell and Gray to testify for the prosecution, and each testified that he had pleaded guilty to an indictment charging conspiracy to transport stolen securities in interstate and foreign commerce. Defense counsel did not object to this questioning, nor did counsel request the trial judge to give a cautionary instruction to the jury to the effect that this testimony could not be considered as" } ]

[ { "docid": "8555991", "title": "", "text": "but think this over and let me know if you disagree”, the defendant’s silence would be assent. The principal functions of the double jeopardy clause are to allow a defendant to get a verdict at the first trial if he wants one and to keep a verdict that is favorable. United States ex rel. Young v. Lane, 768 F.2d 834, 837 (7th Cir.), cert. denied, — U.S. —, 106 S.Ct. 317, 88 L.Ed.2d 300 (1985). Whether the defendant wants a verdict is something he knows best, and when the occasion for choice comes he must choose unless, as in Jom, the judge brooks no opposition, or unless there is insufficient time to deliberate. In Clauser things were going the defendant’s way, making an inference of assent from silence implausible. Here Pavlovic’s defense had been hampered throughout the trial. He had ample time to deliberate. His choice was clear — he made many motions for mistrial and did not retract them or express concern when the judge finally granted the mistrial. The process took more than an hour on December 6, so there was ample time. Pavlovic had only to withdraw his motion and say that he wanted to finish the trial. He did not, so this must be taken as a mistrial on his motion. Pavlovic tries to distinguish Dinitz and Kennedy on the ground that this mistrial really was granted for Buljubasic’s benefit. Yet he never asked the judge to mistry Buljubasic’s case and proceed to judgment on his own. Had he done this, we doubtless would have Buljubasic’s double jeopardy appeal instead of Pavlovic’s. This is why it does not matter that Judge Crabb asked the prosecutor which case should be completed. One or the other had to stop, both defendants had made mistrial motions, and from the perspective of the double jeopardy clause it does not matter which defendant is retried. Finally, it does not matter that Pavlovic testified on voir dire before the court granted the mistrial. This is less of a “preview” of the defense than the prosecutor would have had if Buljubasic’s case had" } ]

[ { "docid": "8815780", "title": "", "text": "EASTERBROOK, Circuit Judge. Nine of the twenty-six defendants in this case charging a conspiracy to distribute cocaine went to trial on November 4, 1991. A prosecutor — whose first trial this was— told the jury during his opening statement that five of the original defendants were cooperating with the government and would appear as witnesses and that four others had also pleaded guilty. The mention that some of the defendants had entered pleas of guilty led the defendants to seek a mistrial. A senior prosecutor from the United States Attorney’s office confessed error and apologized. As everyone wanted a mistrial, the district judge sent the jury home. There was no point conducting a long trial with a built-in error. All nine defendants then insisted that the double jeopardy clause bars further prosecution. The district court denied the motion, observing that the defendants had requested the mistrial. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). On the authority of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the defendants have appealed, asking us to block a second trial. The double jeopardy clause gives the defendant a right to “get a verdict if he wants one and keep it if he gets it”. United States ex rel. Young v. Lane, 768 F.2d 834, 837 (7th Cir.1985). A right to obtain implies a right to relinquish. Defendants may choose whether to proceed with the first jury; if they elect not to, they have not been “deprived” of any entitlement. To honor a choice is not to dishonor the underlying rule. The alternative to honoring the defendant’s choice is forcing the parties to verdict in the first trial, then reversing the conviction and holding another trial — something neither side wants. Dinitz recognizes that a motion for a mistrial is not an invariable sign of the accused’s choice to forego decision by the first tribunal. 424 U.S. at 611, 96 S.Ct. at 1081; see also United States v. DiFrances-co, 449 U.S. 117, 130, 101 S.Ct. 426, 433-34, 66 L.Ed.2d 328 (1980);" }, { "docid": "11092349", "title": "", "text": "Sandini as broadly as Gonzalez suggests we should. We noted in Sandini that, in considering whether a district court committed plain error in failing to grant a mistrial and severance sua sponte based on developments at trial, “we acknowledge that an appropriate denial of a pretrial motion for severance does not preclude a later ruling that there should be a severance because of prejudice which develops at trial.” 888 F.2d at 309 (citing Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 948, 4 L.Ed.2d 921 (1960)). Sandini does not, however, announce a mandatory requirement for severance. A finding that severance might be appropriate based on developments at trial does not compel the conclusion that a severance is required whenever a trial fails to unfold as expected. As we proceeded to note in Sandini: [I]t is risky business for a judge on his own motion to declare a mistrial, as the defendant may thereafter contend that he was entitled to a completion of the first trial so that a retrial is barred by double jeopardy principles. Thus, the defendant who, without asking for a mistrial gets one, will surely argue, and not unreasonably, that if he did not, as here, regard the alleged error as serious enough even to prompt his reaction, a court is effectively granting a mistrial over his objection without “manifest necessity” so that his retrial is barred. Furthermore, we point out that declaring a mistrial because of the conduct at trial of a codefendant, as opposed to that of the government, may well encourage collusive conduct by defendants at a joint trial so as to set the stage for mistrials and possible reversals. The considerations we have set forth lead us to approach [defendant’s] argument with considerable caution. Id. As to what was the “unforeseen development,” Gonzalez contends that he “did not anticipate ... that Morgado would implicate him in drug dealing, and discredit his defense that he was a complete stranger to the drug conspiracy.” Our review of the record, however, clearly indicates that Morgado’s defense was anything but unforeseen. More than a" }, { "docid": "15463284", "title": "", "text": "hair samples. We affirm the defendants’ convictions for the reasons noted below. I. Prior to the defendants’ first joint trial, Willman moved for a severance stating that the Government was planning to call a witness to testify to an incriminating admission made by Cyphers that would incriminate Willman as well. Under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), such testimony would be inadmissible in a joint trial unless redacted so as not to incriminate Willman. Instead of granting a severance, the district court permitted the Government to instruct its witness to substitute the word “partner” when testifying to Cyphers’ references to Willman. The attempted use of redacted testimony failed, however, when the witness mentioned Willman’s name during his testimony at trial. Willman moved for a mistrial. Cyphers, however, refused to join his codefendant’s motion and objected to proceeding with the trial alone. Cyphers believed that he would be substantially prejudiced by a separate trial because he had already informed the jury that he would rely on a joint alibi defense, and he was concerned that certain defense witnesses, including Willman himself, might not testify at a separate trial. The district court then advised Cyphers that his objection to proceeding with the trial alone would be construed as a motion for a mistrial and a waiver of any double jeopardy claim he might raise to prevent a retrial. The district court, after receiving assurances, from Cyphers that he had consulted with counsel on the matter and understood the possible consequences of adhering to his objection to a separate trial, declared a mistrial as to both defendants. Prior to the defendants’ second joint trial. Cyphers moved to dismiss his indictment on double jeopardy grounds. Adhering to his admonition that he would treat Cyphers’ objection to proceeding with his first trial as an implied motion for a mistrial and a waiver .of his double jeopardy claim, the district judge denied the motion. Cyphers argues on appeal that the district court should have dismissed his indictment because he neither moved for, nor caused, the mistrial. He blames" }, { "docid": "10701623", "title": "", "text": "stated he didn’t. Then we came back to our office ... Before the agent could say more, Harrison’s lawyer objected. At defendants’ request, the district judge declared a mistrial, concluding that the agent’s statement was impermissible under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and United States v. Hale, 422 U.S. 171. 95 S.Ct. 2133. 45 L.Ed.2d 99 (1975). Harrison and Potts then argued that a second trial would violate the fifth amendment’s double jeopardy clause. Defendants who request a mistrial relinquish their entitlement to a verdict by the jury then impaneled and may not use the double jeopardy clause to avoid a second trial. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). But if the prosecutor deliberately introduces error in order to provoke a mistrial request and rescue a trial going badly, the Constitution treats matters as if the mistrial had been declared on the prosecutor’s initiative. See Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982); United States v. Oseni, 996 F.2d 186 (7th Cir.1993); United States v. Jozwiak, 954 F.2d 458 (7th Cir.1992). The district judge held a hearing, received testimony from the agent, and concluded that the statement had not been designed to elicit a mistrial request. The second trial followed promptly. Defendants insist that retrial should not have occurred because the witness deliberately misbehaved; the United States relies on the district judge’s findings about the agent’s (and the prosecutor’s) motives. We need not resolve the dispute, because there was no reason to end the first trial and it is therefore impossible to treat the agent’s answer as a maneuver designed to yield a second, and better, shot at a conviction. Hale and Doyle do not forbid all mention at trial of Miranda warnings and the defendant’s response to them. They establish instead that silence following the receipt of Miranda warnings may not be used against a defendant. Silence may be no more than a response to the advice about one’s rights— and it is inappropriate to promise" }, { "docid": "10701628", "title": "", "text": "which we are not privy, would be inappropriate. It is enough that Potts explicitly joined Harrison’s motion for a mistrial. Indeed, it would have been enough had Potts stood silently while Harrison argued for a mistrial. United States v. Buljubasic, 808 F.2d 1260, 1265-66 (7th Cir. 1987). A defendant is entitled to an opportunity to make his wishes known. When the opportunity comes he must seize it, and he must be prepared to accept the consequences. Having received what he asked for, Potts cannot switch sides. Playing both sides of the street may be attractive for Potts but would be unfortunate for future defendants, for if a defendant who requested and got a mistrial could later avoid retrial by protesting that he didn’t really want one, judges would be even more reluctant to grant mistrials than they are already. The double jeopardy clause gives the defendant a right to “get a verdict if he wants one and keep it if he gets it”. United States ex rel. Young v. Lane, 768 F.2d 834, 837 (7th Cir.1985). “A right to obtain implies a right to relinquish. Defendants may choose whether to proceed with the first jury; if they elect not to, they have not been ‘deprived’ of any entitlement. To honor a choice is not to dishonor the underlying rule. The alternative to honoring the defendant’s choice is forcing the parties to verdict in the first trial, then reversing the conviction and holding another trial — something neither side wants.” Jozwiak, 954 F.2d at 459. Potts told the judge that he did not want a verdict from the first jury, and that is that. The second trial began on October 27, 1994. Six or seven days earlier, the prosecutor had told defense counsel that a fingerprint found on a package of cocaine matched Harrison’s recorded prints. Harrison’s lawyer interviewed the fingerprint expert on October 22 and conducted a vigorous cross- examination at trial — for the expert’s initial report of his work on the packaging did not mention any prints, and the prosecutor had told defense counsel that no fingerprint evidence" }, { "docid": "12005256", "title": "", "text": "with what he later told another officer. In Downum v. United States, the Supreme Court not only set forth the principle that the Double Jeopardy Clause assures the defendant a verdict from the jury that has been convened unless “imperious necessity” intervenes, but expressly ruled that this basic right must be held inviolate even though its infringement was due only to a prosecutor’s mishap in announcing ready before assuring that his key witnesses were available, and even though the trial was delayed only two days. There is no basis for supposing that the Supreme Court would trim this imperious necessity doctrine and permit the state to ask for another trial because the prosecutor’s mishap lay in asking improvidently for a mistrial and the trial judge acquiesced. Such mishaps may provide an occasional asylum for the guilty. However, the basic approach — to keep the Double Jeopardy Clause firm, and resist erosion by exceptions that seem reasonable but are not necessary — is one that shelters the innocent against the bitter effects of successive prosecutions. Acquittal itself may be of little succor to an accused if he and his family are exhausted by worry and financially ruined in the process of trying the case again and again. And the retrial process may tilt a doubtful case toward conviction. 2. The broad principles of the Double Jeopardy Clause do not provide a specific answer to the question whether the judge properly ordered a mistrial at appellant’s prior trial. But they do make it clear that granting a mistrial over the defendant’s objection is a decision that should be approached with caution and sensitivity to the values that lie in the balance. Here the decision that another trial was required followed a brief presentation, perhaps 10 minutes in duration, of a motion made orally the day after summation to the jury. The record does not show what notice, if any, was given to defense counsel that day of the prosecution’s intent to seek a mistrial. The prosecutor began by saying the matter “has given me a lot of trouble. I thought about it" }, { "docid": "10701622", "title": "", "text": "EASTERBROOK, Circuit Judge. Of three persons jointly indicted for cocaine offenses, one pleaded guilty and two were convicted by a jury. Mark Higgins, who pleaded guilty, instructed his lawyer to appeal; counsel filed an Anders brief. As counsel concluded, Higgins lacks plausible appellate contentions. The unconditional plea surrendered any objection to the court’s pretrial decisions; the judge followed Fed. R.Crim.P. 11 when taking the plea; and the judge was entitled to conclude that Higgins supervised at least one other person, leading to a two-level enhancement and a sentence of 121 months’ imprisonment. We grant counsel’s motion to withdraw and dismiss Higgins’ appeal as frivolous. The other two appeals have only slightly more substance. Thaddeus Harrison and Orlando Potts were tried twice. The first ended in a mistrial when the question “after the arrest of Thaddeus Harrison, what happened next?” led to this response by an agent of the DEA: I applied for and received — Mr. Harrison was arrested at the scene. We asked him if he wanted to cooperate, and he was Mirandized. He stated he didn’t. Then we came back to our office ... Before the agent could say more, Harrison’s lawyer objected. At defendants’ request, the district judge declared a mistrial, concluding that the agent’s statement was impermissible under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and United States v. Hale, 422 U.S. 171. 95 S.Ct. 2133. 45 L.Ed.2d 99 (1975). Harrison and Potts then argued that a second trial would violate the fifth amendment’s double jeopardy clause. Defendants who request a mistrial relinquish their entitlement to a verdict by the jury then impaneled and may not use the double jeopardy clause to avoid a second trial. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). But if the prosecutor deliberately introduces error in order to provoke a mistrial request and rescue a trial going badly, the Constitution treats matters as if the mistrial had been declared on the prosecutor’s initiative. See Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416" }, { "docid": "10701626", "title": "", "text": "the prosecutor’s question did not violate the due process clause because the prosecutor did not succeed in using the defendant’s silence against him. The prosecutor tried to violate the rule of Doyle but failed, because the judge sustained the objection. Id. at 763-65, 107 S.Ct. at 3107-09. The court’s instruction forestalled the jury from drawing the forbidden inference on its own. Id. at 765-66, 107 S.Ct. at 3108-09. Just so here; rather, so it could and should have been here. The judge cut off the agent’s testimony. The next step should have been to inform the jury that Harrison was entitled to remain silent, and that the exercise of this light did not count against him. The trial should have continued. By demanding (and receiving) a mistrial when the trial readily could have been completed, the defendants surrendered any possible objection to retrial. At least Harrison did. The agent’s testimony did not concern Potts, whose lawyer originally opposed any mistrial. If Potts had maintained that position, he would have been entitled to conclude the trial and receive the verdict of the jury then impaneled. But after time for reflection Potts joined Harrison’s motion for a mistrial. At oral argument Potts’ lawyer asserted that he changed position only because the judge’s body language and tone of voice implied that he did not want to sever the charges against Potts and Harrison. Nothing in the transcript suggests that the judge bullied Potts into relinquishing his right to wind things up at the trial then under way. A judicial invitation to do so is entirely proper, if the choice remains in the defendant’s hands. Completion of the trial is the defendant’s right, to assert or to surrender. The judge’s reasons for preferring a joint trial, including conservation of trial time and a reduction in the demands made on witnesses, are legitimate. Potts may have thought that his own interests lay in the same direction. Often one defendant seeks to point the finger at another, which may work best if the other party is there for the jury to convict. Examining defense strategy, to" }, { "docid": "10701627", "title": "", "text": "and receive the verdict of the jury then impaneled. But after time for reflection Potts joined Harrison’s motion for a mistrial. At oral argument Potts’ lawyer asserted that he changed position only because the judge’s body language and tone of voice implied that he did not want to sever the charges against Potts and Harrison. Nothing in the transcript suggests that the judge bullied Potts into relinquishing his right to wind things up at the trial then under way. A judicial invitation to do so is entirely proper, if the choice remains in the defendant’s hands. Completion of the trial is the defendant’s right, to assert or to surrender. The judge’s reasons for preferring a joint trial, including conservation of trial time and a reduction in the demands made on witnesses, are legitimate. Potts may have thought that his own interests lay in the same direction. Often one defendant seeks to point the finger at another, which may work best if the other party is there for the jury to convict. Examining defense strategy, to which we are not privy, would be inappropriate. It is enough that Potts explicitly joined Harrison’s motion for a mistrial. Indeed, it would have been enough had Potts stood silently while Harrison argued for a mistrial. United States v. Buljubasic, 808 F.2d 1260, 1265-66 (7th Cir. 1987). A defendant is entitled to an opportunity to make his wishes known. When the opportunity comes he must seize it, and he must be prepared to accept the consequences. Having received what he asked for, Potts cannot switch sides. Playing both sides of the street may be attractive for Potts but would be unfortunate for future defendants, for if a defendant who requested and got a mistrial could later avoid retrial by protesting that he didn’t really want one, judges would be even more reluctant to grant mistrials than they are already. The double jeopardy clause gives the defendant a right to “get a verdict if he wants one and keep it if he gets it”. United States ex rel. Young v. Lane, 768 F.2d 834, 837 (7th" }, { "docid": "14244353", "title": "", "text": "At 9:00 the following morning in chambers Meldon again advised the court that Dinitz did not want him to try the case and that in any event, he was unprepared to take the lead in the trial at that time. The judge advised counsel that he did not think that the government or the defendant could get a fair trial and stated that he was seriously considering granting a mistrial. He then declared a thirty minute recess and requested counsel for both sides to consider the alternatives. After the recess, the transcript shows this colloquy: Mr. Weldon: Your Honor, I have conferred with the Defendant and he wishes to move for a mistrial at this time and after full consideration of the situation and an explanation of the alternatives before him, he feels that he would move for a mistrial and that this would be in his best interest. The Court: What does the Government have to say? Mr. Crongeyer: Your Honor, we have discussed this at some length and we think that for the reasons you have set forth already on the record a mistrial might be appropriate in this case, and the Government would not oppose a mistrial. The Court: Then I am going to declare a mistrial, gentlemen. I think under all of the circumstances in this ease that it would be in the interest of justice to declare a mistrial and that is what I plan to do. Subsequently, the court granted Mel-don leave to withdraw as Dinitz’s counsel. Prior to his second trial, Dinitz moved to dismiss the indictment on the basis of double jeopardy and alternatively to have Wagner reinstated as his trial counsel, but both motions were denied. At his second trial Dinitz represented himself and was convicted on both counts in the indictment. II. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824) is the customary starting point for determining whether retrial following a preverdict discharge of the first jury violates the defendant’s fifth amendment rights against double jeopardy. In Perez, a murder case, the trial judge acting" }, { "docid": "4071766", "title": "", "text": "then asked Potts whether the gun belonged to him, but Potts did not respond. A search was conducted of the car, which yielded two additional firearms and some ammunition. Potts was then arrested. Potts was tried for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At trial, the prosecution elicited testimony from James regarding Potts’s silence after being asked who owned the pistol. Potts objected to that testimony, leading to the following exchange out of the hearing of the jury: DEFENSE: Your Honor, I object to the government eliciting testimony that the defendant did not give a statement. He’s under no obligation for him to do that at all. I don’t think it’s proper for them to ask about. PROSECUTION: He wasn’t placed under arrest, whether or not he made any res gestae statements is ... COURT: Your contention is that it violates the Fifth Amendment? DEFENSE: That’s correct. COURT: He’s not being interrogated. He’s not under arrest at that point. DEFENSE: We’re just? COURT: I could instruct the jury that he was not obligated to answer questions of the authorities and there is no crime associated with him doing so, if you would like me to do that. DEFENSE: Yeah. Following that exchange, the court instructed the jury “that Mr. Potts did not have a legal obligation to respond to the officer’s questions and there’s no violation of the law associated with his declining to do so, if in fact he did that,” and the court allowed the prosecution to continue its questioning. Potts did not reassert his objection to the testimony, object to the instruction, or move for a mistrial. The government again referenced Potts’s silence during its closing argument. Potts objected, not on any Fifth Amendment ground but on the ground that the prosecution was attempting to shift the burden of proof. The court instructed the jury that the government had the burden of proof and denied Potts’s subsequent motion for a mistrial on that basis. The jury found Potts guilty, and the court sentenced him to thirty" }, { "docid": "18855111", "title": "", "text": "the defendant moves for and is granted a mistrial on the basis of deliberate prosecutorial misconduct intended to provoke a mistrial motion by the defense. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The Supreme Court in Kennedy stated: [T]he circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Id. at 679, 102 S.Ct. at 2091 (emphasis added). “To permit retrial in such a circumstance offends the interests supporting the double jeopardy bar because the misconduct compelled the defendant to forego his right to a fair trial leading to verdict before the first tribunal.” United States v. Singer, 785 F.2d 228, 238 (8th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 273, 93 L.Ed.2d 249 (1986). The Court’s decision in Kennedy rested on its assertion that the Double Jeopardy Clause protected the defendant’s right to control whether the trial would be completed. Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088. Because a defendant’s mistrial motion generally would not bar retrial, the Court emphasized that only when the prosecutorial misconduct was committed with the intent to force the defendant into giving up his or her right to continue with the trial would double jeopardy apply. Kennedy, 456 U.S. at 675-76, 102 S.Ct. at 2089. In cases where the prosecution wants to force a mistrial, we presume that the prosecution is unprepared or is unhappy with the trial’s progress and wants another opportunity to retry the defendant. Here, Greyson asserts that the prosecution was afraid that without Maria’s testimony, he would be acquitted. Thus, he alleges, the prosecution made the prejudicial statements intentionally to force Greyson to move for a mistrial. He asks this court to extend the rule in Kennedy and halt his fourth trial. He contends that the reasoning underlying Kennedy also applies when a defendant’s mistrial motion was wrongly denied. Several courts have" }, { "docid": "4071769", "title": "", "text": "appropriate for a Fifth Amendment claim even though defense counsel “timely objected to each of the prosecutor’s references to [the defendant’s] post-arrest silence,” because “the trial court sustained all of those objections, and the trial court’s instructions to the jury made it clear that the jury was not to consider any of the challenged remarks.” Furthermore, we remarked that the defense “never took exception to the district court’s handling of his objections and, significantly, ... never requested that the district court declare a mistrial.” Id. at 755-56. Plain error review was appropriate, because the defendant “effectively received all of the relief that he requested from the district court.” Id. at 756. Salinas is not directly controlling, because the court did not explicitly sustain Potts’s objections, but the principles of Salinas inform us. As with the defendant in Salinas, Potts never raised any concerns with how the district court chose to handle his objection, and Potts explicitly agreed to the court’s proffered curative statement. Potts argues that Salinas is inapplicable, because the district court implicitly overruled his objection. That is a mischaracterization of the proceedings. Potts objected to testimony regarding his silence. The district court then offered a curative instruction, which Potts accepted. By accepting the instruction, Potts failed to obtain a definitive ruling on his objection — there was no implicit overruling, but rather no ruling at all. Following that failure to obtain a ruling, Potts accepted the court’s curative instruction without objection, thus failing to preserve error. “We find plain error when (1) there was an error or defect; (2) the legal error was clear or obvious, rather than subject to reasonable dispute; and (3) the error affected the defendant’s substantial rights.” United States v. Juarez, 626 F.3d 246, 254 (5th Cir.2010). Once those three elements have been satisfied, we may exercise our discretion to correct the error. Id. Regarding the second element, “[a]n error is considered plain, or obvious, only if the error is clear under existing law.” Salinas, 480 F.3d at 756. Potts cannot satisfy the second element, because the error he claims was not clear under" }, { "docid": "10701625", "title": "", "text": "a defendant that he may remain silent yet turn silence against him at trial. See Brecht v. Abrahamson, 507 U.S. 619, 627-30, 113 S.Ct. 1710, 1716-17, 123 L.Ed.2d 353 (1993) (discussing the basis of Doyle). A statement such as “I told the suspect that he could remain silent, and he did” does not ask the jury to infer guilt from silence. Even if it did, the right response would be corrective advice from the judge. Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102. 97 L.Ed.2d 618 (1987), holds that such advice suffices even when the prosecutor asks a pointed question such as “Why didn’t you tell [your current] story to anybody when you got arrested” (483 U.S. at 759, 107 S.Ct. at 3105) — which invites the inference that the defense is a recent fabrication, and that silence at arrest implies consciousness of guilt. The judge in Greer sustained an objection to the question and later told the jury to “disregard questions ... to which objections were sustained.” Ibid. The Court concluded, first, that the prosecutor’s question did not violate the due process clause because the prosecutor did not succeed in using the defendant’s silence against him. The prosecutor tried to violate the rule of Doyle but failed, because the judge sustained the objection. Id. at 763-65, 107 S.Ct. at 3107-09. The court’s instruction forestalled the jury from drawing the forbidden inference on its own. Id. at 765-66, 107 S.Ct. at 3108-09. Just so here; rather, so it could and should have been here. The judge cut off the agent’s testimony. The next step should have been to inform the jury that Harrison was entitled to remain silent, and that the exercise of this light did not count against him. The trial should have continued. By demanding (and receiving) a mistrial when the trial readily could have been completed, the defendants surrendered any possible objection to retrial. At least Harrison did. The agent’s testimony did not concern Potts, whose lawyer originally opposed any mistrial. If Potts had maintained that position, he would have been entitled to conclude the trial" }, { "docid": "196781", "title": "", "text": "necessity to require a “high degree” of necessity to justify a mistrial. Id. at 506, 98 S.Ct. at 831. The mistrial granted by the Arizona Court giving rise to the double jeopardy claim was upon motion of the prosecution and resulted from an improper opening statement by defense counsel. The court explained that the high degree standard is more easily met in certain types of cases than others. “At one extreme are cases in which a prosecutor requests a mistrial in order to buttress weaknesses in his evidence.” Id. In these cases, the strictest scrutiny is appropriate in reviewing the finding of manifest necessity: At the other extreme is the mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict, long considered the classic basis for a proper mistrial. The argument that a jury’s inability to agree establishes reasonable doubt as to the defendant’s guilt, and therefore requires acquittal, has been uniformly rejected in this country. Instead, without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws. Moreover, in this situation there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not “manifest necessity” justifies a discharge of the jury. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his “valued right to have his trial completed by a particular tribunal.” But if he fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. If retrial of the defendant were barred whenever an appellate court views the “necessity” for a mistrial differently than the trial judge, there would be a danger that the" }, { "docid": "8815781", "title": "", "text": "52 L.Ed.2d 651 (1977), the defendants have appealed, asking us to block a second trial. The double jeopardy clause gives the defendant a right to “get a verdict if he wants one and keep it if he gets it”. United States ex rel. Young v. Lane, 768 F.2d 834, 837 (7th Cir.1985). A right to obtain implies a right to relinquish. Defendants may choose whether to proceed with the first jury; if they elect not to, they have not been “deprived” of any entitlement. To honor a choice is not to dishonor the underlying rule. The alternative to honoring the defendant’s choice is forcing the parties to verdict in the first trial, then reversing the conviction and holding another trial — something neither side wants. Dinitz recognizes that a motion for a mistrial is not an invariable sign of the accused’s choice to forego decision by the first tribunal. 424 U.S. at 611, 96 S.Ct. at 1081; see also United States v. DiFrances-co, 449 U.S. 117, 130, 101 S.Ct. 426, 433-34, 66 L.Ed.2d 328 (1980); United States v. Jorn 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion); United States v. Tateo, 377 U.S. 463, 468 n. 3, 84 S.Ct. 1587, 1590 n. 3, 12 L.Ed.2d 448 (1964). Perhaps things have been going well for the defense but the prosecutor does something exceedingly prejudicial, so much so that the balance suddenly (and improperly) shifts in the prosecutor’s favor. Even though the defense then moves for a mistrial, termination of the trial is properly attributed to the prosecutor’s conniving rather than to the accused’s preference. In Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982), the Court held that, if “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial”, a second trial is impermissible. So our defendants asked for a hearing at which they could probe the prosecutor’s intent, including “the actual circumstances surrounding the making of the statements by [the prosecutor] and his being designated to" }, { "docid": "23558229", "title": "", "text": "the meeting were two Assistant United States Attorneys, three Deputy United States Marshals, the Judge’s second secretary, who was also a deputy clerk of the District Court, and some witnesses for the prosecution. Neither defendant nor his counsel were notified about this meeting. Judge Winner expressed apprehension that the jury was being intimidated by spectators, and that Martinez might be acquitted. He wanted hidden cameras installed to record the intimidation, which he felt was an obstruction of justice. It was agreed at the meeting that a mistrial would be declared, so as to give the government another chance to convict Martinez before another jury. Judge Winner’s thought was that the prosecutors should not move for a mistrial until after the defense had presented its case, so that the government could be informed as to defense strategies. The judge further stated that he could provoke counsel for defendant into requesting a mistrial. One witness, also a defendant here, Officer Tyus of the City of Denver Police Depart ment, suggested that he could cause a mistrial by giving improper and prejudicial testimony that had previously been ruled inadmissible. The reason given for not inviting defendant’s counsel to the meeting was the court’s suspicion (unverified on the record) that one of defendant’s counsel might be involved in the supposed conspiracy to intimidate the jury. The next morning, the government announced that it no longer opposed the motion for mistrial that had been made the previous day by defendant and denied. Defense counsel asked why the government had changed its position, and, according to the complaint, an Assistant United States Attorney replied, falsely, that the government was willing to consent to a mistrial because one of the jurors had become ill. The defense then joined in the motion, and a mistrial was declared. Judge Winner and the government had apparently thought it important to induce defense counsel to join in the mistrial motion, so as to avoid a later claim of double jeopardy. In United States v. Martinez, supra, we held that the government’s misrepresentation of its grounds for seeking a mistrial and its" }, { "docid": "8555990", "title": "", "text": "severance all along. The judge said she was granting Pavlovic’s pending motion. When the judge finally proposed to give Pavlovic what he sought, Pavlovic did not tell the judge that he had changed his mind. The court was entitled to treat this as a consensual mistrial. Pavlovic cites cases such as United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), and United States ex rel. Clauser v. McCevers, 731 F.2d 423, 426 (7th Cir.1984), holding or implying that when a judge surprises counsel by a declaration of mistrial, the failure to object cannot be taken as consent. Jorn was the classic case of the overbearing judge, and Clauser one in which the mistrial was designed to rescue the prosecutor from a bad turn of events. Neither Jorn nor any other case holds that just because the suggestion of mistrial comes from the judge initially, the defendant's acquiescence is irrelevant. Parties may give assent in many ways. If a judge should say: “I think a mistrial would be a good idea, but think this over and let me know if you disagree”, the defendant’s silence would be assent. The principal functions of the double jeopardy clause are to allow a defendant to get a verdict at the first trial if he wants one and to keep a verdict that is favorable. United States ex rel. Young v. Lane, 768 F.2d 834, 837 (7th Cir.), cert. denied, — U.S. —, 106 S.Ct. 317, 88 L.Ed.2d 300 (1985). Whether the defendant wants a verdict is something he knows best, and when the occasion for choice comes he must choose unless, as in Jom, the judge brooks no opposition, or unless there is insufficient time to deliberate. In Clauser things were going the defendant’s way, making an inference of assent from silence implausible. Here Pavlovic’s defense had been hampered throughout the trial. He had ample time to deliberate. His choice was clear — he made many motions for mistrial and did not retract them or express concern when the judge finally granted the mistrial. The process took more than" }, { "docid": "23162976", "title": "", "text": "as establishing a rigid test for plain error. Instead, we have continued to look on a case-by-case basis to such factors as the obviousness of the error, the significance of the interest protected by the rule that was violated, the seriousness of the error in the particular case, and the reputation of the judicial proceedings if the error stands- uncorrected — all with an eye toward avoiding manifest injustice. In considering this issue, we acknowledge that an appropriate denial of a pretrial motion for severance does not preclude a later ruling that there should be a severance because of prejudice which develops at trial. See Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 948, 4 L.Ed.2d 921 (1960). However, we also point out that it is risky business for a judge on his own motion to declare a mistrial, as the defendant may thereafter contend that he was entitled to a completion of the first trial so that a retrial is barred by double jeopardy principles. See Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717 (1978). Thus, the defendant who, without asking for a mistrial gets one, will surely argue, and not unreasonably, that if he did not, as here, regard the alleged error as serious enough even to prompt his reaction, a court is effectively granting a mistrial over his objection without “manifest necessity” so that his retrial is barred. Id. at 505, 98 S.Ct. at 830. Furthermore, we point out that declaring a mistrial because of the conduct at trial of a co-defendant, as opposed to that of the government, may well encourage collusive conduct by defendants at a joint trial so as to set the stage for mistrials and possible reversals. The considerations we have set forth lead us to approach Thomson’s argument with considerable caution. As we have indicated, Thomson’s first asserted basis for relief, predicated on Kost’s attorney’s statement, is that the statement was inconsistent with Thomson’s defense. Our test for severance in this situation is not lightly met, as severance need be granted only if" }, { "docid": "13639703", "title": "", "text": "held that when the prosecution is going badly, the trial court cannot take away what control the defendant has over the trial and declare a mistrial sua sponte when manifest necessity does not justify it. As the Court noted in Kennedy, the important consideration for double jeopardy purposes is to permit the defendant to decide what to do if the prosecution errs. 456 U.S. at 676, 102 S.Ct. at 2089. In Loving-er, the court took the defendant’s control away. Lovinger could very well have been pleased with the prosecutor’s hardship and have wanted to continue with the trial, since acquittal by the jury or even by the judge on a motion for acquittal was becoming more and more likely as the trial went on. See Lovinger, 845 F.2d at 744. Go-land, on the other hand, retained control. He did not request a mistrial or acquittal when the claimed error occurred; and the court did not grant a mistrial. At the end of the trial, the hung jury justified the mistrial. Goland claims, essentially, that under Lo-vinger, we should excuse him from the manifest necessity bar (if we assume no consent to the mistrial) and the Kennedy prosecutorial intent requirement (if he did consent to the mistrial). Lovinger permits neither course. Lovinger does not hold that prosecutorial overreaching is enough to bar retrial. Furthermore, because Lo-vinger did not request a mistrial, the seventh circuit applied the manifest necessity standard. Goland cannot rely on Lovinger to avoid that bar. II. Alleged Error in Bifurcating Trial A. Case Authority on Bifurcation Goland contends, however, that the pros-ecutorial overreaching in urging bifurcation is relevant in another way: it prevented him from presenting his entire defense, an error so egregious that the double jeopardy clause bars retrial. Goland argues that the bifurcation illegally infringed upon his constitutional right to present his entire defense by preventing the jury from hearing evidence presented by his codefend-ants. Other circuits have upheld bifurcation in some instances and found it error in others, although they have in general disapproved it. The courts reversed convictions after bifurcated trials in United States" } ]

[ { "docid": "22873142", "title": "", "text": "police of conspiring to deprive him of his constitutional rights. There are two problems. One, which applies to all defendants, is that the claim assumes a deprivation of rights — an arrest that is unreasonable within the meaning of the fourth amendment, now applicable to the states through the fourteenth. If the arrest was constitutionally unreasonable, then the police are liable under § 1983 without regard to the “conspiracy”, and if not, not. We defer to Part IV the discussion whether the arrest was supported by probable cause. The other problem, which applies to Jewel and Vaughn, is that the Constitution applies only to governmental actors. Gramenos does not contend that one who accuses someone else of a crime is exercising the powers of the state. A private party comes within § 1983 only when “he is a willful participant in joint action with the State or its agents____ Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the [state].” Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). Although private parties call on the aid of state law “without the grounds to do so”, when the private decision may “in no way be attributed to a state rule or a state decision” (Lugar v. Edmondson Oil Co., 457 U.S. 922, 940,102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982)), the private parties are not state actors. There must be a conspiracy, an agreement on a joint course of action in which the private party and the state have a common goal. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Adickes, the last in a line of cases in which restaurateurs and others used the trespass or vagrancy laws to enforce racial segregation long after it became clear that the state may not discriminate on account of race, has become the basis for a rule that shopkeepers are engaged in “state action” when they strike a deal with" } ]

[ { "docid": "13472596", "title": "", "text": "agency, or requests that a policeman take custody of the suspect. Both the physician and the police represent the state in making the essential respective factual determinations that the individual should be deprived of his personal liberty interest pending a judicial hearing. B. Participation of State Officials In addition to the Flagg Bros, test which focuses on the nature of the service purported to be traditionally a state function, state action may be found where private persons engage in joint activity with state officials. Adickes v. S.H. Kress and Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970). “Conspiracy” with a private actor may transform such purely private activity into state action through the participation of the state officials using the authority they possess by virtue of the state. The majority’s example of citizen’s arrest may even become subject to challenge as state action under Section 1983 when two factors are present: (1) In detaining the suspect, the citizen acts in accordance with a preexisting plan between the citizen and police; and (2) that plan’s content must involve the citizen’s exercise of functions exclusively reserved to the state. Klimzak v. City of Chicago, 539 F.Supp. 221 (N.D.Ill.1982). Accordingly, where police routinely arrested suspected shoplifters based solely on a shopkeeper’s statement without independent investigation, the involvement of the police was sufficient to transform the merchant into a state actor for purposes of Section 1983. Smith v. Brookshire Bros., Inc., 519 F.2d 93 (5th Cir.1975). In his pro se complaint, as indicated by the majority opinion, Spencer does not specifically allege a “conspiracy” with police officers in his emergency involuntary commitment at St. Elizabeth Hospital. Indeed, it would be surprising if a pro se plaintiff with a history of mental illness had sufficient working knowledge of the law to plead the legal phrases which compose the elements of a Section 1983 action. The Court should not penalize Spencer for his inartfully pleaded complaints and subsequent motions. Nonetheless, the majority summarily disposes of this claim due to Spencer’s inability to name police officers as defendants or mention the involvement" }, { "docid": "22261741", "title": "", "text": "the courts and police officers is not sufficient to show a nexus or joint effort between the defendants and the state. See Spencer, 864 F.2d at 1381 (“[Pjolice assistance in the lawful exercise of self-help does not create a conspiracy with the private person exercising that self-help.”) (citing Lugar, 102 S.Ct. at 2755 n. 21). Finally, the civil commitment process traditionally has not been not a function exclusively reserved to the State of Mississippi. The Mississippi Constitution of 1890 charged the State with the duty to care for the mentally ill. See Chill, 429 So.2d at 579. However, in 1899 the Mississippi Supreme Court upheld a civil suit against two physicians who filed certificates attesting to a woman’s insanity and leading to her commitment, even though those physicians were not the parties legally charged with making commitment decisions. See Bacon v. Bacon, 24 So. 968 (Miss.1899). This reflects that private citizens in Mississippi have been participating in the civil commitment process for over one hundred years. Mississippi civil commitment cannot be considered a traditionally exclusive public function for purposes of the state action analysis. Neither Parkwood nor Sheets can be held liable under section 1983. Bass’s section 1983 claims against DeSoto County also fail. Bass first alleges that the officers illegally detained him before the writ was signed, thereby violating his Fourth • Amendment rights as applied to the states by the Four teenth Amendment. The officers are indisputably state actors. However, they are not official policy makers for DeSoto County, and therefore their conduct, even if tortious, cannot bind the County under section 1983. See Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611, (1978). “Under 42 U.S.C. § 1983, a county cannot be held liable on a theory of respondeat superior merely because it employs a tortfea-sor.” Esteves v. Brock, 106 F.3d 674, 677 (1997). To hold a local government liable for the acts of its agents or officers, the plaintiff must prove that his injury was caused by an official policy or custom of the municipality. See id. Bass has" }, { "docid": "10006004", "title": "", "text": "a valid state statute. A court cannot attribute private defendants’ misuse of a valid state statute to the state. Id. at 940,102 S.Ct. at 2755. An allegation that private defendants simply misused a valid state statute does not state a cause of action under § 1983. Id.; Earnest v. Lowentritt, 690 F.2d 1198, 1201 (5th Cir.1982). Therefore, logically, Jim Judge’s filing of a complaint apparently containing falsehoods cannot be attributed to the state. 3. Eliciting state authority. Courts have recognized specific applications of the general rule regarding misuse of a valid state statute. “[A] private party does not act under color of state law when she merely elicits but does not join in an exercise of official state authority.” Police reliance in making an arrest on information given by a private party does not make the private party a state actor. Hernandez v. Schwegmann Brothers Giant Supermarkets, Inc., 673 F.2d 771, 772 (5th Cir.1982). “The execution by a private party of a sworn complaint, which forms the basis for an arrest, is, without more, not sufficient to make that party’s acts state action.” The record supports the conclusion that defendant Jim Judge reported criminal activity and signed a complaint. These actions alone, however, cannot satisfy the state action requirement. 4. Conspiracy with a state official. In Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the plaintiff alleged that a private defendant and a police officer conspired to cause plaintiff’s arrest on a false vagrancy charge. Id. at 149-50, 90 S.Ct. at 1604; see Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 932 n. 15, 102 S.Ct. 2744, 2751 n. 15, 73 L.Ed.2d 482 (1982). The plaintiff did not allege that the state vagrancy statute was invalid; she simply alleged that the private defendant and the police officer conspired to misuse the state vagrancy statute. The Adickes Court held that: the private party’s joint participation with a state official in a conspiracy ... would constitute both “state action essential to show a direct violation of petitioner’s Fourteenth Amendment ... rights” and action" }, { "docid": "6598634", "title": "", "text": "create a sufficiently close nexus between the state and the doctor or the hospital. In her opposition to Steele’s motion, plaintiff asserts that Steele’s involuntary admission, commitment and subsequent treatment of Mr. Jackson constituted action under color of state law. However, Steele’s decision to submit Mr. Jackson to involuntary commitment is alone insufficient to establish state action. In Harvey v. Harvey, 949 F.2d 1127, 1134 (11th Cir.1992), where a plaintiff brought a civil rights action against her husband, private physicians and a private hospital for her involuntary commitment, the Eleventh Circuit held that the defendants were not state .actors. In the decision, the court cited a similar Seventh Circuit case, Spencer v. Lee, 864 F.2d 1376 (7th Cir.1989) with approval. The Eleventh Circuit observed that “[i]n Spencer, not only the majority but also the dissent apparently agreed that members of the general citizenry cannot be considered state actors when they decide to institutionalize a patient.” Harvey, 949 F.2d at 1133. Concurring in part and dissenting in part with the majority in Spencer, Judge Ripple clearly examined the present issue: The simple invocation of state legal procedures, standing alone, does not constitute joint participation or conspiracy with state officials. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 n. 21, 102 S.Ct. 2744, 2755 n. 21, 73 L.Ed.2d 482.... Therefore, ... we can conclude that the decision of the family and the physician to seek involuntary commitment is not action attributable to the state. The state neither commands nor encourages such private initiative. See Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534,____ “Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment.” Blum, 457 U.S. at 1004-05, 102 S.Ct. at 2786. Spencer, 864 F.2d at 1383. Furthermore, plaintiff does not assert state action by contending that the treatment of persons afflicted with mental disease has been “traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct." }, { "docid": "13472560", "title": "", "text": "law torts into federal constitutional torts comes from the immunities and the damage ceilings that states frequently impose on suits against their public officials (see, e.g., Archie v. City of Racine, 847 F.2d 1211, 1227 (7th Cir.1988) (concurring opinion)), from a sense that state judges are sometimes unsympathetic to suits against the state, and from the availability of attorney’s fee awards in civil rights suits under 42 U.S.C. § 1988. Only the last of these considerations is present in a case such as this where the only defendants are private persons (or private institutions) not acting pursuant to formal judicial order. See Executive Commercial Services, Ltd. v. Daskalakis, 74 Ill.App.3d 760, 766, 31 Ill.Dec. 58, 62, 393 N.E.2d 1365, 1369 (1979). There is neither practical nor legal basis for this suit. AFFIRMED. RIPPLE, Circuit Judge, with whom FLAUM, Circuit Judge, joins, concurring in part and dissenting in part. Despite the great number of cases and the seemingly well-honed lexicon of “tests,” the concept of “state action” remains a difficult one. “[FJormulating an infallible test,” the Supreme Court has said, remains an “impossible task.” Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 1632, 18 L.Ed.2d 830 (1967). “While the principle that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated, the question whether particular conduct is ‘private,’ on the one hand, or ‘state action,’ on the other, frequently admits of no easy answer.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349-50, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). In words that echo the warning of Justice Clark in Burton v. Wilmington Parking Authority, 365 U.S. 715, 723, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961), now-Chief Justice Rehnquist has pointedly remarked that “[t]he true nature of the State’s involvement may not be immediately obvious, and detailed inquiry may be required in order to determine whether the test is met.” Jackson, 419 U.S. at 351, 95 S.Ct. at 453-454. Several factors require that, in the case before us, we take special heed of Chief Justice Rehnquist’s injunction. As a threshold" }, { "docid": "2766778", "title": "", "text": "381, 388 (5th Cir.1985), cert. denied, 486 U.S. 1027, 108 S.Ct. 2007, 100 L.Ed.2d 237 (1988); see also Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208 (7th Cir.1980) (“A private person does not conspire with a state official merely by invoking an exercise of the state official’s authority.”); Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir.1988) (“‘The execution by a private party of a sworn complaint, which forms the basis for an arrest, is, without more, not sufficient to make that party’s acts state action.’ ”) (quoting Sims v. Jefferson Doums Racing Ass’n., 778 F.2d 1068, 1078-79 (5th Cir.1985)); see also Dunton v. County of Suffolk, 729 F.2d 903, 910 (2d Cir.1984); Grow v. Fisher, 523 F.2d 875, 879 (7th Cir.1975) (private person’s filing of a criminal complaint is not under color of state law). It is true that, under certain circumstances, a “private party’s joint participation with a state official in a conspiracy to [deprive him of his federal rights] would constitute ... ‘ “under color” of law for purposes of [§ 1983]’ ” Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 2750, 73 L.Ed.2d 482 (1982) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 1604, 1606, 26 L.Ed.2d 142 (1970)). However, plaintiff must “allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy.” Powell v. Workmen’s Compensation Bd. of State of New York, 327 F.2d 131, 137 (2d Cir.1964). “A complaint containing only con-clusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997) (quoting Leon v. Murphy, 988 F.2d 303, 311 (2d Cir.1993)). Here, neither Washington nor Clarke jointly participated with the other defendants to deprive plaintiff of his Constitutional rights. The deposition testimony reveals that none of the defendants were aware that Washington was recording plaintiffs telephone conversations, that none of the defendants asked or encouraged her to do so, and that" }, { "docid": "13472557", "title": "", "text": "before committing him, he might have killed himself before they could obtain the necessary order. When family members commit a person who has just tried to kill himself, they do not, by virtue of this action, become state actors subject to suit under section 1983. To allow family members, physicians, and other private persons to exercise the commitment power without safeguards, however, including a provision for a hearing eventually — and sooner rather than later — would be monstrous. If Spencer thinks the eight days allowed by Illinois law for confinement prior to hearing is too much, he can challenge the constitutionality of the statute, by analogy to Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). He has not done so. Indeed, he relies on the statute to make the defendants state actors. But a private commitment is no more state action than a citizen’s arrest, the repossession of chattels, or the ejection of trespassers is. The statutes authorizing or constraining these private activities may or may not be constitutional (Fuentes); the activities themselves remain private (Flagg Brothers—and see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 940, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982); Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir.1984); Loyd v. Loyd, 731 F.2d 393, 398-99 (7th Cir.1984); Greco v. Guss, 775 F.2d 161, 164-67 (7th Cir.1985)). This conclusion has been reached with specific reference to a daughter’s use of a civil commitment statute to institutionalize her father so that he would not remarry, the court remarking that “armed with less process than would be necessary to seize a refrigerator, Texas peace officers dragged Dahl from his home and deposited him with Presbyterian Hospital in Dallas.” Dahl v. Akin, 630 F.2d 277, 279 (5th Cir.1980). We are given some pause by the allegation in Spencer’s complaint of involvement by the local police: specifically that Dr. Lee had given Spencer the injection “After cau[s]ing a psychiactric [sic] emergency by dismissing me from St. Elizabeth Hospital and a false arrest by the Danville Police Department while seeking medical" }, { "docid": "13472597", "title": "", "text": "and (2) that plan’s content must involve the citizen’s exercise of functions exclusively reserved to the state. Klimzak v. City of Chicago, 539 F.Supp. 221 (N.D.Ill.1982). Accordingly, where police routinely arrested suspected shoplifters based solely on a shopkeeper’s statement without independent investigation, the involvement of the police was sufficient to transform the merchant into a state actor for purposes of Section 1983. Smith v. Brookshire Bros., Inc., 519 F.2d 93 (5th Cir.1975). In his pro se complaint, as indicated by the majority opinion, Spencer does not specifically allege a “conspiracy” with police officers in his emergency involuntary commitment at St. Elizabeth Hospital. Indeed, it would be surprising if a pro se plaintiff with a history of mental illness had sufficient working knowledge of the law to plead the legal phrases which compose the elements of a Section 1983 action. The Court should not penalize Spencer for his inartfully pleaded complaints and subsequent motions. Nonetheless, the majority summarily disposes of this claim due to Spencer’s inability to name police officers as defendants or mention the involvement of the police with sufficient frequency. Given the Court’s obligation to construe Spencer’s complaint liberally and dismiss the complaint only if he can prove no set of facts which would entitle him to relief, Spencer has sufficiently alleged the involvement of the Danville Police Department to sustain defendants’ motion to dismiss. Spencer initially implicates the involvement of the Danville Police in his complaint in which he alleged the “false arrest by the Danville Police Department.” In his motion for an injunction, Spencer again alleges an “arrest while seeking admission.” Spencer also refers to an arrest in his more definite and complete statement ordered by the district court. Finally, the medical records attached to Spencer’s more definite statement which were completed by Dr. Lee and other members of the St. Elizabeth staff indicate that Spencer was brought to the hospital by the police. As the majority correctly notes, the mere invocation of statutory remedies does not of itself transform private activity into state action. See, e.g., Earnest v. Lowentritt, 690 F.2d 1198 (5th Cir.1982) (no state" }, { "docid": "13472598", "title": "", "text": "of the police with sufficient frequency. Given the Court’s obligation to construe Spencer’s complaint liberally and dismiss the complaint only if he can prove no set of facts which would entitle him to relief, Spencer has sufficiently alleged the involvement of the Danville Police Department to sustain defendants’ motion to dismiss. Spencer initially implicates the involvement of the Danville Police in his complaint in which he alleged the “false arrest by the Danville Police Department.” In his motion for an injunction, Spencer again alleges an “arrest while seeking admission.” Spencer also refers to an arrest in his more definite and complete statement ordered by the district court. Finally, the medical records attached to Spencer’s more definite statement which were completed by Dr. Lee and other members of the St. Elizabeth staff indicate that Spencer was brought to the hospital by the police. As the majority correctly notes, the mere invocation of statutory remedies does not of itself transform private activity into state action. See, e.g., Earnest v. Lowentritt, 690 F.2d 1198 (5th Cir.1982) (no state action was found by individual invoking mortgage foreclosure law without state official being involved). However, Spencer’s allegations of the involvement of the police in his commitment are no different than those in Lugar where the sheriff assisted the plaintiff in attaching property. Similarly, in Del’s Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344 (7th Cir.1986), the mere presence of a sheriff while private parties executed an ex parte order of attachment was sufficient to transform the private parties into “deputy sheriffs pro tem.” Del’s Big Saver at 1346. The fact that the order to repossess collateral was executed by the private parties without calling on the sheriff did not distinguish the case from Lugar. Likewise, the mere presence of the police while Spencer was detained at St. Elizabeth Hospital is sufficient participation to constitute state action. II. TREATMENT Spencer alleges that the mistreatment he received from defendants during his emergency commitment amounted to a deprivation of his liberty interest without due process of law. As noted earlier, the Supreme Court has recognized" }, { "docid": "623307", "title": "", "text": "as state actors under color of law they must be jointly engaged with state officials in the conduct allegedly violating the federal right. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1429 (10th Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 65, 88 L.Ed.2d 53 (1985); see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 931-32 and n. 15, 941, 102 S.Ct. 2744, 2750-51 and n. 15, 2755-56, 73 L.Ed.2d 482 (1982); Adickes, 398 U.S. at 152, 90 S.Ct. at 1605-06. This concerted action constitutes both the state action essential to establish a constitutional violation, and action under color of state law, custom or usage. See Lugar, 457 U.S. at 931-32, 102 S.Ct. at 2750-51. In the instant case, Carey did not allege facts from which we might conclude that his arrest resulted from any concerted action, whether conspiracy, prearranged plan, customary procedure, or policy that substituted the judgment of a private party for that of the police or allowed a private party to exercise state power. See Lusby, 749 F.2d at 1430, 1433. If Gilbert himself made a “citizen’s arrest” of Carey, as Carey asserts, this does not make Gilbert a state actor. See Lee v. Town of Estes Park, 820 F.2d 1112 (10th Cir.1987). Gilbert’s complaining about Carey’s presence to a Tulsa police officer who, acting within the scope of his statutory duties, arrested Carey after questioning him, does not, without more, constitute state action for which Gilbert can be held responsible. Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983). Because Carey neither alleged nor offered evidence to support any concerted action between Gilbert and the police, the district court appropriately granted summary judgment on the § 1983 claim. A federal court may not exercise pendent jurisdiction over state law claims when the federal claim is insubstantial. See Jones v. Intermountain Power Project, 794 F.2d 546, 549 (10th Cir.1986); see also Dezell v. Day Island Yacht Club, 796 F.2d 324, 328-29 (9th Cir.1986). Carey’s § 1983 claim is clearly insubstantial, foreclosed by prior decisions of the Supreme Court and this court. Even if" }, { "docid": "13472550", "title": "", "text": "like the arrest of criminal suspects, is so central and traditional a function of government that the state cannot limit its responsibility for performing the function. Any private individual who is empowered to commit a person to an institution against the person’s will is government, just as the \"company town” in Marsh was a part of the government of Alabama, although a part that had been handed over to a private entity to administer. Spencer is thus appealing — with support in the language of cases like Blum and in the outcome of Marsh — to the idea that governmental functions that have traditionally been the exclusive prerogative of government, usually because they involved a high degree of coercion, can be delegated but not abandoned. The treatment of the mentally disabled, however, as of the sick and infirm generally, is not such a function. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2772, 73 L.Ed.2d 418 (1982); Musso v. Suriano, 586 F.2d 59, 63 (7th Cir.1978); Hoyt v. St. Mary’s Rehabilitation Center, 711 F.2d 864, 866 (8th Cir.1983); Taylor v. First Wyoming Bank, 707 F.2d 388 (9th Cir. 1983), and cases cited there. The issue here, it is true, is involuntary commitment rather than treatment. But the analogy that Spencer seeks to draw to arrest is inapt, since a citizen’s arrest is not subject to challenge under section 1983. Lee v. Town of Estes Park, 820 F.2d 1112 (10th Cir.1987); Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir.1987); Bryant v. Donnell, 239 F.Supp. 681, 687 (W.D.Tenn.1965); cf. Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 1772, 12 L.Ed.2d 754 (1964) (where this proposition seems to have been assumed). Nor is the exercise of self-defense, or the defense of property by evicting trespassers or repossessing chattels, state action, even though self-defense often and the defense of property sometimes involve a degree of force characteristic of police operations. There have been citizen arrests for as long as there have been public police — indeed much longer. In ancient Greece and Rome, and in" }, { "docid": "10006013", "title": "", "text": "have since recognized and complied with the Franks decision. See Dancy v. State, 728 S.W.2d 772 (Tex.Crim.App.) cert. denied, — U.S. —, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987) (applying Franks); Ramsey v. State, 579 S.W.2d 920, 923 (Tex.Crim.App.1979) (discussing Franks and concluding that the decision requires retroactive application). But see Kolbert v. State, 644 S.W.2d 150, 152 (Tex.App. — Dallas 1982, no pet.) (\"Our determination of the validity of an affidavit supporting an arrest warrant is limited to consideration of the four corners of the affidavit.”). . Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 388 (5th Cir.1985); see also Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208 (7th Cir.1980) (\"A private person does not conspire with a state official merely by invoking an exercise of the state official’s authority.”). . Sims v. Jefferson Downs Racing Association, 778 F.2d 1068, 1078-79 (5th Cir.1985); see also Grow v. Fisher, 523 F.2d 875, 879 (7th Cir.1975) (simply filing complaint is an action of a private person not under color of state law). . Lugar, 457 U.S. at 931, 102 S.Ct. at 2750 (quoting Adickes, 398 U.S. at 152, 90 S.Ct. at 1606). The Lugar Court continued: \"It was with respect to this count, which did not allege any unconstitutional statute or custom, that the Court held that joint action of the private party and the police officer was sufficient to support a § 1983 suit against that party.\" 457 U.S. at 932 n. 15, 102 S.Ct. at 2751 n. 15; see also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980) (in § 1983 action, dismissal of judge on immunity grounds does not require dismissal of private parties he conspired with); Smith v. Winter, 782 F.2d 508, 512 (5th Cir.1986) (complaint alleging conspiracy between government official and private individuals to deprive plaintiffs of their constitutional rights alleged action under color of state law); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir.1985), cert. denied, - U.S. -, 107 S.Ct. 103, 93 L.Ed.2d 53 (1986); Phillips v. Vandygrifi, 711 F.2d 1217, 1225-26" }, { "docid": "2198362", "title": "", "text": "action that is alleged to be unconstitutional implements or executes ... a decision officially adopted and promulgated by that body’s officers.” Monell, 436 U.S. at 690, 98 S.Ct. 2018. The officers entry into Young’s hotel room could not have been implementing the Order if Young was correct in his assertion that he was a tenant at the hotel. C. John Q. Hammons, Hotels Inc. and Gerald Adcock Young alleges that security guard Adcock conspired with the police to deprive Young of his civil rights. Private parties are only liable under 42 U.S.C. § 1983 when they have been jointly engaged with public officers in the denial of civil rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Young has presented no evidence, beyond Adcock’s calling the police, to support the proposition that Adcock was conspiring with the police to violate Young’s civil rights. “A private person does not conspire with a state official merely by invoking an exercise of the state official’s authority.” Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208 (7th Cir.1980). Young has not presented any evidence that Adcock and the police had a meeting of the minds with regard to violating Young’s constitutional rights. There is not sufficient evidence that would enable a rational factfinder to conclude that the officers’ conduct at the hotel resulted from concerted action “tantamount to substituting the judgment of a private party for that of the police or allowing the private party to exercise state power.” Alexis v. McDonald’s Rest., 67 F.3d 341, 352 (1st Cir.1995). The only facts on which Young relies consist of Adcock calling the police and bringing the officers to the suite. This is not enough to bring Adcock and the hotel he worked for under the purview of section 1983. III. CONCLUSION For the reasons stated, the order of the district court is affirmed. . A sternum rub is accomplished by applying pressure with the knuckles upon a person's sternum. Not surprisingly, this technique can successfully awaken people from a deep sleep. . The statute governing leases" }, { "docid": "13472559", "title": "", "text": "treatment.” None of Spencer’s numerous subsequent filings mentions the police; nowhere is it suggested that they conspired with the defendants, and he has named no police officers as defendants. It is possible that the police were called in to assist with one of Spencer’s commitments, though this does not seem to be what he is alleging. At all events, police assistance in the lawful exercise of self-help does not create a conspiracy with the private person exercising that self-help. Lugar v. Edmondson Oil Co., supra, 457 U.S. at 939 n. 21, 102 S.Ct. at 2755 n. 21; Gramenos v. Jewel Cos., 797 F.2d 432, 435-36 (7th Cir.1986); Greco v. Guss, supra, 775 F.2d at 167-68; Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208 (7th Cir.1980). The citizen who makes a citizen’s arrest is not transformed into a state actor by handing over the arrested person to the police — indeed, if he fails to do so, the arrest is invalid and he is liable for false imprisonment. The pressure to transform state common law torts into federal constitutional torts comes from the immunities and the damage ceilings that states frequently impose on suits against their public officials (see, e.g., Archie v. City of Racine, 847 F.2d 1211, 1227 (7th Cir.1988) (concurring opinion)), from a sense that state judges are sometimes unsympathetic to suits against the state, and from the availability of attorney’s fee awards in civil rights suits under 42 U.S.C. § 1988. Only the last of these considerations is present in a case such as this where the only defendants are private persons (or private institutions) not acting pursuant to formal judicial order. See Executive Commercial Services, Ltd. v. Daskalakis, 74 Ill.App.3d 760, 766, 31 Ill.Dec. 58, 62, 393 N.E.2d 1365, 1369 (1979). There is neither practical nor legal basis for this suit. AFFIRMED. RIPPLE, Circuit Judge, with whom FLAUM, Circuit Judge, joins, concurring in part and dissenting in part. Despite the great number of cases and the seemingly well-honed lexicon of “tests,” the concept of “state action” remains a difficult one. “[FJormulating an infallible test,” the" }, { "docid": "17984854", "title": "", "text": "law. Neither adherence to nor violation of the Act transforms the merchant into a state actor. There are thus no facts to support the “under color” of law conclusions. And no inferences of fact may reasonably be drawn in Klimzaks’ favor absent some factual predicate for those inferences. Complaint Count I must fail. Count II, based on the same facts as Count I, can fare no better. Its legal theory is that the Act is an unconstitutional violation of Klimzaks “fifth [sic] and fourteenth amendment” rights. Again state action is required, and again none is alleged. Count II also advances the legal conclusion: that the actions of Chicago in allowing the defendants Kane and Jewel to oper ate as a private police force are in conspiracy to violate the rights of plaintiff. Once more the factual underpinning for that “conspiracy” conclusion is conspicuously absent. See Tarkowski v. Bartlett Realty Co., 644 F.2d 1204, 1206-07 (7th Cir. 1980); Sparkman v. McFarlin, 601 F.2d 261, 268 (7th Cir. 1979) (en banc) (Sprecher, J., concurring). Moreover the asserted “conspiracy” is no more than an agreement to allow Kane and Jewel to proceed in accordance with the Act. That is not action “exclusively reserved to the state.” Like Count I, then, Count II is wanting in state action terms. Count III does focus on different facts, but the legal result is the same. While the alleged acts may be wrongful, they too fail to convert Kane’s and Jewel’s agents into state actors. Nothing in Count III (or the Complaint read as a whole) states the Chicago police agreed to allow Kane and Jewel to exercise normal police functions (rather than the self-help activities allowed under the Act). No “color” of state law is thus present in Count III either. City Liability Under Section 1983 Klimzaks are delinquent in responding to the City’s motion to dismiss on the briefing schedule established by this Court. Under this District Court’s General Rule 13(b), the motion will be considered without awaiting the tardy brief. By definition the City is a state actor. But to sustain a Section 1983" }, { "docid": "13472558", "title": "", "text": "(Fuentes); the activities themselves remain private (Flagg Brothers—and see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 940, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982); Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir.1984); Loyd v. Loyd, 731 F.2d 393, 398-99 (7th Cir.1984); Greco v. Guss, 775 F.2d 161, 164-67 (7th Cir.1985)). This conclusion has been reached with specific reference to a daughter’s use of a civil commitment statute to institutionalize her father so that he would not remarry, the court remarking that “armed with less process than would be necessary to seize a refrigerator, Texas peace officers dragged Dahl from his home and deposited him with Presbyterian Hospital in Dallas.” Dahl v. Akin, 630 F.2d 277, 279 (5th Cir.1980). We are given some pause by the allegation in Spencer’s complaint of involvement by the local police: specifically that Dr. Lee had given Spencer the injection “After cau[s]ing a psychiactric [sic] emergency by dismissing me from St. Elizabeth Hospital and a false arrest by the Danville Police Department while seeking medical treatment.” None of Spencer’s numerous subsequent filings mentions the police; nowhere is it suggested that they conspired with the defendants, and he has named no police officers as defendants. It is possible that the police were called in to assist with one of Spencer’s commitments, though this does not seem to be what he is alleging. At all events, police assistance in the lawful exercise of self-help does not create a conspiracy with the private person exercising that self-help. Lugar v. Edmondson Oil Co., supra, 457 U.S. at 939 n. 21, 102 S.Ct. at 2755 n. 21; Gramenos v. Jewel Cos., 797 F.2d 432, 435-36 (7th Cir.1986); Greco v. Guss, supra, 775 F.2d at 167-68; Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208 (7th Cir.1980). The citizen who makes a citizen’s arrest is not transformed into a state actor by handing over the arrested person to the police — indeed, if he fails to do so, the arrest is invalid and he is liable for false imprisonment. The pressure to transform state common" }, { "docid": "13472599", "title": "", "text": "action was found by individual invoking mortgage foreclosure law without state official being involved). However, Spencer’s allegations of the involvement of the police in his commitment are no different than those in Lugar where the sheriff assisted the plaintiff in attaching property. Similarly, in Del’s Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344 (7th Cir.1986), the mere presence of a sheriff while private parties executed an ex parte order of attachment was sufficient to transform the private parties into “deputy sheriffs pro tem.” Del’s Big Saver at 1346. The fact that the order to repossess collateral was executed by the private parties without calling on the sheriff did not distinguish the case from Lugar. Likewise, the mere presence of the police while Spencer was detained at St. Elizabeth Hospital is sufficient participation to constitute state action. II. TREATMENT Spencer alleges that the mistreatment he received from defendants during his emergency commitment amounted to a deprivation of his liberty interest without due process of law. As noted earlier, the Supreme Court has recognized the rights of mentally retarded patients committed involuntarily in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452. In Youngberg, a mentally retarded respondent was involuntarily committed to a Pennsylvania state institution. As a result of the mistreatment he received, his mother filed an action on his behalf under Section 1983 naming the institution as defendant. The Court determined that the respondent was entitled to “constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by those interests.” 457 U.S. at 324, 102 S.Ct. at 2462. In his concurrence, Justice Black-mun notes a distinction between “care” and “treatment,” leaving open the question whether treatment alone raises the same due process concerns. Youngberg at 318 and n. 23, 102 S.Ct. at 2459 and n. 23 (Blackmun, J., concurring). Spencer raises similar claims of mistreatment during the period of his involuntary commitment at St. Elizabeth Hospital. However, unlike Romeo, Spencer was treated at a private facility. Illinois does not distinguish between the two types of facilities" }, { "docid": "22261740", "title": "", "text": "See id. at 1381 (noting that “Bedlam” was originally a private institution). Thus, the commitment and treatment of the mentally ill could not be deemed a function traditionally within the exclusive province of the state. See id. Finally, the court compared civil commitment to a citizen’s arrest, which has been held not subject to section 1983 challenges. Id. at 1380. See also White v. Scrivner Corp., 594 F.2d 140, 142-143 (5th Cir.1979) (finding no state action in store employees’ detention of suspected shoplifters). As in the case of a citizen’s arrest or a warehouseman’s sale, the statutory authorization of private acts does not transform such conduct into state action: “The statutes authorizing or constraining these private activities may or may not be constitutional [citation]; the activities themselves remain private [citations].” Spencer, 864 F.2d at 1381 (citations omitted). Similarly, Mississippi’s civil commitment statutes neither compel nor encourage the private initiation of commitment proceedings. Instead, they merely authorize and regulate the commission of such acts. The fact that the defendants in this case invoked the assistance of the courts and police officers is not sufficient to show a nexus or joint effort between the defendants and the state. See Spencer, 864 F.2d at 1381 (“[Pjolice assistance in the lawful exercise of self-help does not create a conspiracy with the private person exercising that self-help.”) (citing Lugar, 102 S.Ct. at 2755 n. 21). Finally, the civil commitment process traditionally has not been not a function exclusively reserved to the State of Mississippi. The Mississippi Constitution of 1890 charged the State with the duty to care for the mentally ill. See Chill, 429 So.2d at 579. However, in 1899 the Mississippi Supreme Court upheld a civil suit against two physicians who filed certificates attesting to a woman’s insanity and leading to her commitment, even though those physicians were not the parties legally charged with making commitment decisions. See Bacon v. Bacon, 24 So. 968 (Miss.1899). This reflects that private citizens in Mississippi have been participating in the civil commitment process for over one hundred years. Mississippi civil commitment cannot be considered a traditionally exclusive" }, { "docid": "7272698", "title": "", "text": "factual support for that allegation if the court will permit him to conduct exhaustive discovery. This is not to say that lawyer is required to know specific, highly detailed facts before undertaking discovery. It simply means that he has a duty before making such an allegation to make “reasonable inquiry” to see that “it is well grounded in fact.” Fed.R.Civ. P. 11. The section 1983 claims against the city and superintendent are dismissed. The section 1983 claims against the private defendants are without merit. A private citizen does not become a state actor just because he reports a crime and the police rely on his report to make an arrest. See, e.g., Grow v. Fisher, 523 F.2d 875, 879 (7th Cir.1975) (“The mere fact that the individual defendants were complainants and witnesses in action which itself was prosecuted under color of law does not make their complaining or testifying other than what it was, i.e., the action of private persons not acting under color of law.”); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983) (“We know of no case in which the report of a state crime is action under color of state law under § 1983.”); Taylor v. Nichols, 558 F.2d 561, 564 (10th Cir.1977) (“The acts of filing a claim and testifying at trial do not constitute state action. These are private acts.”). See also McKinney, supra, at 1190. Nor does a private person become a state actor by virtue of a conelusory allegation that he conspired with someone acting under color of state law. See, e.g., Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204 (7th Cir.1980); Sparkman v. McFarlin, 601 F.2d 261 (7th Cir.1979) (en banc). The section 1983 claims against these defendants are dismissed. As the foundation for his section 1985 conspiracy claims, the plaintiff alleges that he is a member of a class consisting of “persons frequenting the area on the Northside of Chicago who use public parking lots which are patroled [sic] by the LINCOLN TOWING SERVICE and who are a class of persons which Defendant LINCOLN TOWING SERVICE seeks to-harass [sic]" }, { "docid": "23443021", "title": "", "text": "occurs when government actors restrain liberty of citizen by means of physical force or show of authority). Omissions as well as actions may violate civil rights. Generally, however, the Constitution creates only negative duties for state actors. See, e.g., Archie v. City of Racine, 826 F.2d 480, 486 (7th Cir.1987) (Fourteenth Amendment does not create a judicially enforceable right to a minimum level of governmental services), aff'd en banc, 847 F.2d 1211 (1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989). However, under certain circumstances a state actor’s failure to intervene renders him or her culpable under § 1983. See, e.g., White v. Rochford, 592 F.2d 381, 383 (7th Cir.1979) (police officers liable for exposing children to danger by leaving them unattended in a ear parked on the highway after lawfully arresting their guardian); Byrd v. Brishke, 466 F.2d 6, 10 (7th Cir.1972) (under the Civil Rights Act, damages are recoverable both for misfeasance and nonfeasance); Gagnon v. Ball, 696 F.2d 17, 21 (2d Cir.1982) (officer hable for failing to intervene in false arrest); Byrd v. Clark, 783 F.2d 1002, 1007. (11th Cir.1986) (remanded for determination on whether defendant police officer had opportunity to intervene to prevent unprovoked beating inflicted by fellow officer); Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir.1983) (police officer hable for failing to intervene when other officers used unnecessary force against plaintiff); cf. Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir.1982) (not necessary to demonstrate that officer actively participated in striking plaintiff), cert. denied, 459 U.S. 1171, 103 S.Ct. 816, 74 L.Ed.2d 1014 (1983). Byrd v. Brishke remains the seminal case in this circuit on the duty of an officer to intervene to prevent summary punishment. In Brishke, this court held that “one who is given a badge of authority of a pohce officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge.” 466 F.2d at 11. This responsibility to intervene applies equally to supervisory and nonsupervisory officers. Id. An" } ]

[ { "docid": "13569660", "title": "", "text": "director, Mouton. The transmittal was signed and approved by Mouton and submitted to the accounting office which subsequently paid Ms. Velasquez according to the false information contained within it. II Initially, the appellant argues that the indictment was defective because it failed to allege that he aided and abetted in using or causing to be used a false document. Appellant argues that because Ms. Velasquez admittedly prepared her false time sheet, the only act which appellant performed was to aid and abet in the submission of the false information to the accounting office. Without citing any authority for his proposition, appellant argues that this somehow makes the indictment defective. The test to determine the sufficiency of an indictment is well established. An indictment is sufficient if it contains the essential elements of the offense so that it fairly informs the defendant of the charge against him and if it adequately enables the defendant to be protected against further prosecution for the same offense. United States v. Broome, 628 F.2d 403, 405 (5th Cir. 1980); United States v. Guthartz, 573 F.2d 225, 227 (5th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978). Furthermore, an indictment is to be read in light of its purpose, which is to inform the accused of the charges against him. United States v. Ylda, 643 F.2d 348, 352 (5th Cir. 1981) . Its validity is governed by practical, not technical, considerations. United States v. Varkonyi, 645 F.2d 453, 456 (5th Cir. 1981). In this light, it is overwhelmingly clear that the indictment informed the appellant of the charges against him and effectively precluded him from further prosecution for the same offense. Specifically, it stated that the appellant violated 18 U.S.C. § 1001 when he “caused to be used a false time sheet dated October 28, 1977” knowing that the “false time sheet stated that Olga Velasquez worked eight (8) hours for the OJT program on October 17, 1977” and that such “statement of hours worked was false.” It is clear that the indictment was sufficient to allege a violation by the" } ]

[ { "docid": "224750", "title": "", "text": "to the carrier as a separate service charge (Gov’t Ex. 155, 157, see Tr. 59, 62, 1897).” The two exhibits cited by the government are a March, 1974 Blue Shield publication entitled “Medicare Notes”, which outlined the procedure to be followed when doctors bill Medicare for lab tests, and an August 27, 1970 letter from Blue Shield on the same subject. Neither letter prohibited doctors from receiving payments from labs, and, even if there had been some proof at trial that these defendants had received and read these documents, and there was no such proof, we do not think that mere letters from Blue Shield could form the basis for a criminal prosecution. In short, no statute or regulation formed the basis for the allegation in paragraph 10 of the indictment. We must hold that the indictment failed to charge a conspiracy to defraud the United States and that the government failed to prove any such conspiracy at trial. It is our affirmative duty to carefully scrutinize indictments under the broad language of the conspiracy statute because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the guilty, see Dennis v. United States, 384 U.S. 855, 860, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Krulewitch v. United States, 336 U.S. 440, 445-458, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring). We cannot hold that the defendants’ conduct was “plainly and unmistakably” proscribed by 18 U.S.C. § 371. See generally Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 405 (1959). The Mail Fraud Counts It necessarily follows that Counts 2 through 67 of the indictment failed to charge the defendants with mail fraud in violation of 18 U.S.C. § 1341. That statute prohibits the use of the mails for the purpose of executing any scheme or artifice to defraud, and the indictment charged that the defendants “did knowingly, wilfully and unlawfully devise and intend to devise a scheme and artifice to defraud the United States ... of its right to have its Medicare programs for providing" }, { "docid": "12892267", "title": "", "text": "privacy in his conversation with Dozier. For that reason, the warrantless interception and recording of that conversation did not contravene the fourth amendment. III. The appellant, Hugo Sanes-Saavedra, first attacks the sufficiency of the indictment, contending that Count II, the count under which he was convicted, was too vague to satisfy his sixth amendment guarantee to be informed of the government’s accusation against him. See Russell v. United States, 369 U.S. 749, 761, 82 S.Ct. 1038, 1045, 8 L.Ed.2d 240, 249 (1962). To pass constitutional muster, an indictment must be sufficiently specific to inform the defendant of the charge against him and to enable him to plead double jeopardy in any future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590, 620 (1974). Those requirements are satisfied by an indictment that tracks the wording of the statute, as long as the language sets forth the essential elements of the crime. 418 U.S. at 117, 94 S.Ct. at 2907, 41 L.Ed.2d at 620-21; see also United States v. Marable, 578 F.2d 151, 154 (5th Cir.1978). In addition, “an indictment for conspiracy to commit a criminal offense need not be as specific as a substantive count.” United States v. Ramos, 666 F.2d 469, 475 (11th Cir.1982). Against this background, the indictment here meets the test of specificity. Count II recites the essential elements of the offense charged against Sanes-Saavedra — knowingly conspiring to import a schedule I controlled substance into the United States, in violation of 21 U.S.C. §§ 952(a) and 963. It identified his alleged co-conspirators as well as the particular controlled substance. See Ramos, 666 F.2d at 474. The indictment also correctly set forth the time span of the conspiracy: from June 1, 1981 until the date of the indictment (November 24, 1981). See Marable, 578 F.2d at 154; c.f. United States v. Cecil, 608 F.2d 1294, 1297 (9th Cir.1979) (“open-ended” time frame considered insufficient). It further described the locale of the alleged conspiracy, at least partially, with the allegation that the criminal activity took place “in the Northern" }, { "docid": "8731175", "title": "", "text": "Count one of the indictment charged appellant with conspiring to defraud the United States by impeding, impairing, obstructing and defeating the lawful function of the Internal Revenue Service in violation of 18 U.S.C. § 371. Section 371 reads in pertinent part as follows: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose ... each shall be fined not more than $10,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 371. This language reaches “ ‘any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of Government.’ ” Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 1844, 16 L.Ed. 2d 973 (1966) (quoting Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 253, 54 L.Ed. 569 (1910)). This court has expressly held that conspiracies to defraud the IRS are chargeable under section 371. United States v. Shermetaro, 625 F.2d 104, 111 (6th Cir.1980). The Dennis court warned, however, that “indictments under the broad language of the general conspiracy statute must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable.” Dennis, 384 U.S. at 860, 86 S.Ct. at 1843. [A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). In denying appellant's motion to dismiss, the district court applied the above standard and found that “[cjount I is specific enough to inform [appellant] of the charges against him and to enable him to protect against further prosecutions for the same offense.” Appellant argues that the conspiracy count should have" }, { "docid": "22949425", "title": "", "text": "that the indictment was poorly drawn, we hold that neither of these omissions renders the indictment invalid; thus, the indictment is not subject to dismissal. The validity of an indictment is determined “from reading the indictment as a whole and ... by practical, not technical considerations.” United States v. Markham, 537 F.2d 187, 192 (5th Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977) (citations omitted). “The test is not whether the indictment could have been framed in a more satisfactory manner but whether it conforms to minimal constitutional standards.” United States v. Haas, 583 F.2d 216, 219 (5th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979). These standards are set out in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974): Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or a conviction in bar of future prosecutions for the same offense. Id. at 117, 94 S.Ct. at 2907 (citations omitted). See also United States v. Gold, 743 F.2d 800 at 812 (11th Cir.1984). Count One fails to state that the conspiracy to obstruct justice related to a grand jury investigation. Abundant ease law supports the proposition that it is not necessary to allege in the conspiracy count all of the elements of the offense that is the object of the conspiracy with the same technical precision as would be necessary in a substantive count. See, e.g., Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545 (1927); United States v. Clark, 649 F.2d 534, 539 (7th Cir.1981); United States v. Cuesta, 597 F.2d 903, 917 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979). Appellant does not claim to have been misled at any time as to what proceeding allegedly was obstructed. The ambiguity arises because the overt acts listed refer to" }, { "docid": "18713583", "title": "", "text": "the federal offense of armed bank robbery by defendant’s brother Willie B. Maggitt; In violation of Section 1513 of Title 18 of the United States Code. Maggitt contends that count three of the indictment is defective and should have been dismissed by the district court for failing to allege a necessary element of the offense, i.e., the federal connection of the law enforcement officers to whom Williams provided information. The test to determine the sufficiency of an indictment is well established. An indictment is sufficient if it contains the essential elements of the offense so that it fairly informs the defendant of the charge against him. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). An indictment is to be read in light of its purpose, which is to inform the accused of the charges. United States v. Chavis, 772 F.2d 100, 110 (5th Cir.1985); United States v. Mouton, 657 F.2d 736, 739 (5th Cir.1981). Its validity is governed by practical, not technical, considerations. United States v. Lennon, 751 F.2d 737, 743 (5th Cir.), cert. denied, — U.S.-, 105 S.Ct. 2324, 85 L.Ed.2d 842 (1985). In this light, we conclude that the allegations contained in count three of Maggitt’s indictment did sufficiently charge an offense under 18 U.S.C. § 1513. The indictment tracks the statutory language of section 1513 which includes all the elements of the offense. See United States v. Davis, 592 F.2d 1325, 1328 (5th Cir.), cert. denied, 442 U.S. 946, 99 S.Ct. 2894, 61 L.Ed.2d 318 (1979) (“This circuit has held that an indictment is generally sufficient if it sets forth the offense in the words of the statute including all the elements.”). In addition, the indictment provides sufficient factual particulars to adequately inform Tommy Maggitt of the charges against him. See United States v. Montemayor, 703 F.2d 109, 117 (5th Cir.), cert. denied, 464 U.S. 822, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983). In particular, the indictment identifies the victim of the threat, the precise character of the threat, the date on which the threat occurred, and the purpose of the" }, { "docid": "7564589", "title": "", "text": "68 L.Ed. 968 (1924); United States v. Hopkins, 916 F.2d 207, 213 (5th Cir.1990). Second, as in all conspiracies, the government must allege that at least one of the alleged conspirators committed an overt act in furtherance of the objectives of the conspiracy. See United States v. Burton, 126 F.3d 666, 670 (5th Cir.1997). In this case, Count 1 of the indictment tracked the language of the defraud clause of § 371 by charging that the defendants “conspired, agreed, and combined to defraud the United States.” Although we agree with the defendants that this language, by itself, would have been insufficient, the indictment does more than merely recite the language of the statute. In the “Manner and Means” section, the indictment outlined the scheme in which the defendants engaged, thereby clearly establishing that the defendants were charged with cheating the government out of money and with “impairing, obstructing, or defeating” a lawful function of the IRS — i.e., collecting taxes. In sum, therefore, when viewed as a whole, we find that the indictment adequately informed the defendants of the nature of the charges against them, and was sufficiently specific to enable them to raise the defense of double jeopardy in any future prosecutions. IV. Friddell, Clark, Leroy Schaefer, and Roxanne Schaefer challenge the sufficiency of the evidence to support their convictions under § 371. In reviewing the sufficiency of the evidence, we view the evidence and all inferences to be drawn from it in the light most favorable to the verdict to determine if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Sneed, 63 F.3d 381, 385 (5th Cir.1995) (citing United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.1992)). As discussed above, to obtain a conviction under § 371, the government must prove that the alleged conspirators agreed among themselves to defraud the United States and that at least one of the alleged conspirators committed an overt act in furtherance of the conspiracy. United States v. Chesson, 933 F.2d 298, 306 (5th Cir.1991). The agreement, however," }, { "docid": "8731176", "title": "", "text": "104, 111 (6th Cir.1980). The Dennis court warned, however, that “indictments under the broad language of the general conspiracy statute must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable.” Dennis, 384 U.S. at 860, 86 S.Ct. at 1843. [A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). In denying appellant's motion to dismiss, the district court applied the above standard and found that “[cjount I is specific enough to inform [appellant] of the charges against him and to enable him to protect against further prosecutions for the same offense.” Appellant argues that the conspiracy count should have been dismissed because the object of the conspiracy was not a crime and because it was not established that he knew of the conspiracy’s unlawful purpose or that he agreed to participate. Initially, appellant characterizes the allegations in the indictment as a charge of money laundering and notes that during the relevant time period money laundering was not a crime. Furthermore, appellant alludes to the cash deposits of less than $10,000 and interprets them as structured transactions and notes that such transactions are not a crime. It is a basic tenet of conspiracy law that an overt act in furtherance of a conspiracy need not be illegal itself. Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942); United States v. Reifsteck, 841 F.2d 701, 704 (6th Cir.1988). The government, citing to this basic principle, argues that the indictment did state a crime since money laundering or structuring transactions were not the objects of the conspiracy, but rather the object was to defraud the IRS and these actions were" }, { "docid": "12592305", "title": "", "text": "of deductions for advance royalty ‘payments’____” (I R. 2). We believe the allegation in Count I of “false and ficticious claims of deductions” is sufficient when read in light of the entire Count. It is true that indictments under the broad language of the general conspiracy statute “must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable.” Dennis v. United States, 384 U.S. 855, 860, 86 S.Ct. 1840, 1843, 16 L.Ed.2d 973 (1966) (citations omitted). However the indictment should be read as a whole and interpreted in a common-sense manner. See United States v. Hajecate, 683 F.2d 894, 898 (5th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2086, 77 L.Ed.2d 298 (1983); see also 8 J. Moore, Moore’s Federal Practice H 7.04, at 7-20 (2d ed. 1985). Count I charges that five of the individual defendants and the Bank conspired to defraud the United States (unlawful objective) by false and ficticious claims of deductions (the means). Accord Schino v. United States, 209 F.2d 67, 69 (9th Cir. 1953), cert. denied, 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087 (1954). The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. Count II charges five of the individual defendants with the same conspiracy but as to research and development payments. It states the gist of the offense of conspiracy and adequately lays out the grand jury’s charges and the general factual circumstances underlying them. The fact that the defendants contest the substance of the offense charged does not render the indictment insufficient. See United States v. Crooks, 804 F.2d 1441, 1450 (9th Cir. 1986). We do not feel that a lack of economic substance allegation is required in an indictment already alleging that the defendants conspired to defraud the United States through false and ficticious claims of deductions for research and development payments. The Bank further contends that Count I fails to allege the" }, { "docid": "7564587", "title": "", "text": "of conspiracy to defraud the United States; Clark of Counts 2 and 3; Johnson of Count 8; Dixon of Counts 5 and 7; Richard Summers of Counts 7, 9, and 10; Leroy Schaefer of Counts 12, 14, 15, and 16; and Roxanne Schaefer of Counts 12, 13, and 14. The jury acquitted Clark of Count 4, Dixon of Count 6, and Roxanne Schaefer of Count 11. All of the defendants appeal their convictions. Clark and Leroy Schaefer also appeal the computation of their sentences. III. All of the defendants argue that Count 1 of the indictment is insufficient as a matter of law. Specifically, the defendants argue that the indictment is defective because it merely recites the “generic” language of the statute without identifying the specific facts underlying the offense and because it fails to identify the object of the alleged scheme to defraud the United States. Although we agree that the indictment is far from a model of clarity, “[t]he test for validity is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards.” United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir.1986). An indictment is sufficient in a constitutional sense if it “(1) enumerates each prima facie element of the charged offense, (2) notifies the defendant of the charges filed against him, and (3) provides the defendant with a double jeopardy defense against future prosecutions.” United States v. Flores, 63 F.3d 1342, 1360 (5th Cir.1995) (quotation and citation omitted). We find that the conspiracy charge in this case meets these minimal standards. To allege a violation of § 371, the government must allege two elements. First, the government must allege that two or more people agreed to defraud the United States. 18 U.S.C. § 371. The defraud clause of § 371 reaches both a conspiracy to cheat the government out of property or money and any conspiracy designed to im pair, obstruct, or defeat the lawful function of any department of the government. See Hammerschmidt v. United States, 265 U.S. 182, 187-88, 44 S.Ct. 511, 512," }, { "docid": "23678265", "title": "", "text": "the overt acts prohibited thereunder and charged here. This recitation, coupled with the court’s further explanation of the essential elements required to convict for participation in an unlawful conspiracy, adequately informed the jury of the requisities to a finding of guilty on the conspiracy count. Additionally, such terms as “dispense” and “distribute”, being within the common understanding of a juror, do not require trial court elaboration. United States v. Corckett, 506 F.2d 759, 762 (5th Cir. 1975). III. INDICTMENT Beasley contends that the conspiracy count of the indictment was vague and indefinite, failed to state an offense, and did not apprise him of the charges he must defend against. More particularly, Beasley complains that Count I failed to allege a single overt act; or to specify the time within the two-year period in which the conspiracy was formed or perpetrated, the respective roles played by the four defendants, or the identity of the “divers other persons” allegedly involved. First, defendant asserts that the indictment, although tracking the language of the statute, is still insufficient under Rule 7(c), Fed.R.Crim.P., having omitted a statement of times, places, facts and circumstances defining the conspiracy alleged or an explanation of the object of the conspiracy. To satisfy Rule 7(c), however, the indictment need only: (1) contain the elements of the offense intended to be charged, (2) apprise Beasley of what he must be prepared to meet, and (3) protect him from being again placed in jeopardy for same offense. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Mekjian, 505 F.2d 1320, 1324 (5th Cir. 1974). The same principles are used to judge the sufficiency of a conspiracy count. Grene v. United States, 360 F.2d 585, 586 (5th Cir. 1966), cert. denied, 385 U.S. 978, 87 S.Ct. 522, 17 L.Ed.2d 440 (1966). Since Count I of the indictment meets each of these essentials it is sufficient. Beasley verbalizes the contention that there is a variance between the offense charged in the indictment and the proof offered. In reality he attacks the government’s failure to specifically" }, { "docid": "7564588", "title": "", "text": "more satisfactory manner, but whether it conforms to minimal constitutional standards.” United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir.1986). An indictment is sufficient in a constitutional sense if it “(1) enumerates each prima facie element of the charged offense, (2) notifies the defendant of the charges filed against him, and (3) provides the defendant with a double jeopardy defense against future prosecutions.” United States v. Flores, 63 F.3d 1342, 1360 (5th Cir.1995) (quotation and citation omitted). We find that the conspiracy charge in this case meets these minimal standards. To allege a violation of § 371, the government must allege two elements. First, the government must allege that two or more people agreed to defraud the United States. 18 U.S.C. § 371. The defraud clause of § 371 reaches both a conspiracy to cheat the government out of property or money and any conspiracy designed to im pair, obstruct, or defeat the lawful function of any department of the government. See Hammerschmidt v. United States, 265 U.S. 182, 187-88, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924); United States v. Hopkins, 916 F.2d 207, 213 (5th Cir.1990). Second, as in all conspiracies, the government must allege that at least one of the alleged conspirators committed an overt act in furtherance of the objectives of the conspiracy. See United States v. Burton, 126 F.3d 666, 670 (5th Cir.1997). In this case, Count 1 of the indictment tracked the language of the defraud clause of § 371 by charging that the defendants “conspired, agreed, and combined to defraud the United States.” Although we agree with the defendants that this language, by itself, would have been insufficient, the indictment does more than merely recite the language of the statute. In the “Manner and Means” section, the indictment outlined the scheme in which the defendants engaged, thereby clearly establishing that the defendants were charged with cheating the government out of money and with “impairing, obstructing, or defeating” a lawful function of the IRS — i.e., collecting taxes. In sum, therefore, when viewed as a whole, we find that the indictment adequately informed" }, { "docid": "22289400", "title": "", "text": "overt acts alleged to have been committed “in furtherance of the said conspiracy and to effect the objects thereof.” Taken as a whole, the allegations of Count One sufficiently charge defendants with specific intent to commit the described offense. In United States v. Purvis, 580 F.2d 853, 859 (5th Cir. 1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463 (1979), this Court observed: “Conspiracy” incorporates willfulness and specific intent. As the Supreme Court stated in Frohwerk v. United States [249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561], “intent to accomplish an object cannot be alleged more clearly than by stating that parties conspired to accomplish it.” [citation omitted]. Defendants assert that the indictment failed to charge offenses under 18 U.S.C.A. § 1962 because an essential element of the offenses, effect of the enterprise’s activities on interstate commerce, was not alleged with sufficient specificity. Rule 7, Federal Rules of Criminal Procedure, states: “The indictment . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The indictment must inform defendants of the nature and cause of the accusation to permit preparation of a defense and must equip defendants with sufficient facts to plead former jeopardy in a subsequent prosecution for the same offense. 8 Moore’s Federal Practice ¶ 7.04 at 7-15 (rev. 2d ed. 1978); United States v. Contris, 592 F.2d 893 (5th Cir. 1979). An indictment which specifically states all elements of the offense also ensures that the grand jury charged such an offense and that critical parts of the charged offense were not subsequently contributed by the prosecutor alone. See Van Liew v. United States, 321 F.2d 664 (5th Cir. 1963); United States v. Nance, 174 U.S.App.D.C. 472, 533 F.2d 699 (D.C.Cir. 1976). Defendants do not contend that insufficient proof of effect on interstate commerce was adduced at trial. The Government’s case suggested interstate commerce was affected by the use of interstate communications facilities to make long distance phone calls, destruction of one or more automobiles used in activities affecting interstate commerce, receipt of dynamite in Florida manufactured" }, { "docid": "2627692", "title": "", "text": "v. Andrus, 478 F.Supp. 125, 130 (D.D.C.1979). As a final complaint as to the indictment, Ivey and Wallace maintain that Count 1 of the indictment was defective in that it failed to state an essential element of the conspiracy offense charged. In Count 1 of the Indictment, Ivey and Wallace were charged with conspiracy to violate 18 U.S.C. § 545, receiving bobcat hides brought into this country “contrary to law.” Ivey and Wallace complain that the indictment does not state which elements of the law their actions violated, and, thus, it is incomplete. The complaint that an indictment for conspiracy is flawed because it fails to allege the elements of the substantive crime “ignores literally decades of black-letter law to the contrary____ It is well settled that an indictment for conspiring to commit an offense — in which the conspiracy is the gist of the crime — it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy.” United States v. Graves, 669 F.2d 964, 968 (5th Cir.1982), citing, Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301-02, 71 L.Ed. 545 (1927). The fundamental purpose of an indictment is to inform the defendant of the charges against him so that he may prepare an adequate defense. To be sufficient, an indictment for conspiracy must set out the essential elements of the charge and list the overt acts committed in furtherance of the conspiracy. United States v. Gordon, 780 F.2d 1165, 1170 (5th Cir.1986). The essential element in a charge of conspiracy is the agreement between the parties. In Count 1 of the indictment in question, the government uses over two pages to describe the agreement and another two pages to describe in detail the overt acts in furtherance of the agreement. The Count went far beyond mere adequacy to apprise Ivey and Wallace of the charges against them and give them an opportunity to prepare a defense. After a careful examination of the indictment as against all contentions, we conclude that" }, { "docid": "12592304", "title": "", "text": "hold that the indictment is sufficiently precise to meet the requirements of the Constitution and Rule 7(c) of the Federal Rules of Criminal Procedure. We agree with the district court that the basis of Counts I and II also served as the foundation of the fraud alleged in Counts III through XXVI. Consideration of the first two counts alone was urged in the briefs submitted. Therefore, we direct our attention primarily to Counts I and II. Accord United States v. Arge, 418 F.2d 721, 723 (10th Cir.1969). C Essential elements of the offense charged The court should dismiss an indictment if it does not “contain[] the elements of the offense intended to be charged.” Russell, 369 U.S. at 763, 82 S.Ct. at 1047. All the defendants contend, and the district court agreed, that the failure to allege the lack of economic substance of the underlying programs rendered the indictment fatally defective. We disagree. Count I charges all the individual defendants and the Bank with defrauding the United States of America “through false and ficticious claims of deductions for advance royalty ‘payments’____” (I R. 2). We believe the allegation in Count I of “false and ficticious claims of deductions” is sufficient when read in light of the entire Count. It is true that indictments under the broad language of the general conspiracy statute “must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable.” Dennis v. United States, 384 U.S. 855, 860, 86 S.Ct. 1840, 1843, 16 L.Ed.2d 973 (1966) (citations omitted). However the indictment should be read as a whole and interpreted in a common-sense manner. See United States v. Hajecate, 683 F.2d 894, 898 (5th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2086, 77 L.Ed.2d 298 (1983); see also 8 J. Moore, Moore’s Federal Practice H 7.04, at 7-20 (2d ed. 1985). Count I charges that five of the individual defendants and the Bank conspired to defraud the United States (unlawful objective) by false and" }, { "docid": "3866243", "title": "", "text": "of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i. e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential ele ments are sometimes referred to as ‘intentional and purposeful discrimination.’ United States v. Johnson, 577 F.2d 1304, 1308 (5th Cir. 1978). In a sentence, this “heavy burden” has not been carried by the defendants. Of course, our conclusion does not prohibit them from further developing the record to support their contentions. The Uni Oil appellees also contend that count 1 is defective for failing to delineate the elements of commercial bribery. An indictment is sufficient if it clearly informs the defendant of the precise offense of which he is accused so that he may prepare his defense and if it states facts adequate to permit the defendant to plead former jeopardy in a subsequent prosecution. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962). Furthermore, as the Supreme Court has explained, the sufficiency of an indictment “is not a question of whether it could have been more definite and certain.” United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 115, 98 L.Ed. 92 (1953) (emphasis added). Although we do not condone the government’s sloppiness, we find the indictment passes the test outlined above. Despite the government’s failure to allege each element of commercial bribery separately, the indictment contains copious facts which adequately apprise the defendants of the nature of the charge against them. Therefore, the indictment’s deficiency is not material. See United States v. Ylda, 643 F.2d 348 at 352 (5th Cir. 1981). The Mapco appellees also urge that counts 1 through 23 are duplicitous because in addition to charging RICO and mail fraud violations, each count also charges the additional offense of conspiracy to defraud the United States, 18 U.S.C. § 371. A duplicitous indictment charges two or more distinct" }, { "docid": "11863754", "title": "", "text": "For such a violation, only the single penalty prescribed by the statute can be imposed. Id. at 54, 63 S.Ct. at 102. See also United States v. Avila-Dominguez, 610 F.2d 1266 (5th Cir. 1980). By way of explanation, we note the distinction between the present indictment and that invalidated as duplicitous in Siegel v. United States, 484 F.Supp. 553 (S.D.Fla.1980). Count One of the Siegel indictment charged conspiracy to import cocaine and marijuana. Since the accusation involved charges under two distinct statutes carrying separate penalties and involving different evidence, the count was stricken as duplicitous. Such is not the case here, where the appellants were charged with and sentenced for violating one statute only, 21 U.S.C. § 846, and where the required proof was limited to a lone agreement among the members of one group to consummate a single transaction: the sale of methaqualone to Agent Mazzilli. No allegation was made nor evidence introduced which possibly could be construed to indicate the existence of more than one conspiracy. Given that the indictment properly charged a single illicit agreement under 21 U.S.C. § 846, the court finds the appellants’ suggestion of duplicity totally without merit. B. Sufficiency of the Indictment The appellants continue their attack on the indictment in toto, contending that it suffers from vagueness and lack of specificity. Clearly, the sixth amendment guarantees every defendant the right to be informed of the government’s accusation against him. Russell v. United States, 369 U.S. 749, 761, 82 S.Ct. 1038, 1045, 8 L.Ed.2d 240 (1962). The prevailing test relied upon by courts seeking to safeguard this constitutional protection was articulated in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1942): [A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Id. at 117, 94 S.Ct. at 2907. The appellants argue that the Hamling test is offended because the indictment states conclusions" }, { "docid": "23048329", "title": "", "text": "with the probation on Count II; and ordered to pay $20,000 in restitution to Emmco Insurance Company. SUFFICIENCY OF THE INDICTMENT Gordon challenges the sufficiency of the indictment contending that it is deficient because it fails to state in detail “the facts and circumstances of the specific offense charged.” The indictment’s most basic purpose is to fairly inform a defendant of the charge against him. Count one of Gordon’s indictment, the conspiracy charge, details the predicate offenses and the overt act with great specificity. It alleges that as part of the conspiracy the defendants, Shirley Singleton Copeland, James C. Gordon, and William Dale Blount, “knowingly and willfully devise[d] and intend[ed] to devise a scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises” from an insurance company. It then lists the overt act alleging that Gordon and Blount had Copeland steal the 1979 White Western Star tractor, VIN JTPCPQ1030182, for the purpose of collecting insurance on the truck from Gordon’s insurer, EMMCO Insurance Company. Gordon nevertheless contends that this count is defective because its charging portion does not set forth sufficient material facts essential to its validity under minimal constitutional standards. He also contends that the indictment is defective because each of its counts fails to set forth the essential elements of the offense charged. Finally, Gordon argues that the indictment fails to specify any means, known or unknown, by which the defendants are alleged to have committed the offenses charged. An indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant what charge he must be prepared to meet, and enables the accused to plead acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590, 620 (1974); United States v. Montemayor, 703 F.2d 109, 117 (5th Cir.1983), cert. denied, 464 U.S. 822, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983); United States v. Cauble, 706 F.2d 1322, 1333 (5th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996," }, { "docid": "22686545", "title": "", "text": "broad language of the general conspiracy statute must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable. See Krulewitch v. United States, 336 U. S. 440, 445-458 (concurring opinion); United States v. Bufalino, 285 F. 2d 408, 417-418 (C. A. 2d Cir. 1960). But in the present case we conclude that the indictment for conspiracy was proper as to each of the petitioners. Four of the petitioners — those who filed the affidavits alleged to be false — presumably could have been indicted for the substantive offense of making false statements as to a “matter within the jurisdiction of” the Board, a violation of 18 U. S. C. § 1001 (1964 ed.). But the essence of their alleged conduct was not merely the individual filing of false affidavits. It was also the alleged concert of action — the common decision and common activity for a common purpose. The conspiracy was not peripheral or incidental. It lay at the core of the alleged offense. It is the entire conspiracy, and not merely the filing of false affidavits, which is the gravamen of the charge. This conspiratorial program included, as prime factors, not only those who themselves filed the false statements, but others who were equally interested in the conspiratorial purpose and who were directly and culpably involved in the alleged scheme. The Government sought to fasten culpability upon all of the conspirators. The indictment properly charges a conspiracy, and with the required specificity alleges the culpable role of each of the petitioners. Nor can it be concluded that a conspiracy of the described nature and objective is outside the condemnation of the specific clause of § 371 relied upon in the indictment, which charges a conspiracy “to defraud the United States, or any agency thereof in any manner or for any purpose.” It has long been established that this statutory language is not confined to fraud as that term has been defined in the common law. It" }, { "docid": "14602504", "title": "", "text": "was improperly vague because it broadly charged a conspiracy to defraud the IRS rather than alleging violations of specific IRS requirements and, second, they contend that the evidence was insufficient to prove a knowing agreement to deceive the IRS. II. Defective Indictment Hurley and Burnett were convicted under 18 U.S.C. § 371, which prohibits two distinct types of conspiracies: conspiracies to commit a specific offense against the United States and conspiracies to defraud the United States, or one of its agencies, “in any manner or for any purpose.” Count 1 of the indictment charged defendants under the second, broader clause, alleging that they conspired “to defraud the United States by impeding, impairing, obstructing and defeating the lawful functions of the [IRS] in the ascertainment, computation, and collection of income taxes owed by Salvatore M. Caruana.” Relying primarily on United States v. Minarik, 875 F.2d 1186 (6th Cir.1989), defendants argue that Count I was defective in that it charged a generic conspiracy to defraud the United States rather than a conspiracy to commit a specific tax offense—an error that they claim invalidates their convictions. In Minarik, the Sixth Circuit affirmed a district court’s grant of judgment notwithstanding the verdict for two defendants whom it concluded had been charged improperly under the defraud clause. Among other things, the appeals court was concerned that the broad “conspiracy to defraud” language of the indictment overstated the defendants’ duty to disclose information to the IRS. See id. at 1195. The court thus held that, where the object of an alleged criminal agreement is covered by a specific criminal statute that “closely defin[es]” a citizen’s duties, the government must prosecute under the “offense,” not the “defraud,” clause of § 371. See id. at 1194-96. Appellants claim that, like the defendants in Minarik, they had no general responsibility to assist the IRS in its effort to collect taxes, and they therefore could be convicted under § 371 only if they violated a specific tax provision that would trigger the statute’s offense clause. Prosecution and conviction on the non-specific conspiracy to defraud charge, they argue, violated their due" }, { "docid": "23513605", "title": "", "text": "SUFFICIENCY Count II charged Lopez, Callahan, Taylor, Patterson and Matassini with conspiracy to violate 18 U.S.C. §§ 1503 (obstruction of justice) and 1510 (obstruction of criminal investigations), in violation of 18 U.S.C. § 371. Count II charged two aspects of the conspiracy. First, Count II charged that Taylor, then a special investigator for the Florida State Attorney’s Office, passed information to Callahan concerning federal investigations, including the fact that Carl Caccamo was a federal informant. Continuing, the count charged that Callahan attempted to arrange the murder of Caccamo. Second, it alleged that the conspirators agreed to give false testimony to the grand jury and withhold information. 1. Adequacy Appellant Taylor contends that the district court erred in failing to grant his motion to dismiss Count II of the indictment on the grounds that the indictment failed to adequately describe many of the necessary elements of the offense. We cannot agree. An indictment is sufficient if it “contains the elements of the offense intended to be charged,” sufficiently appraises the defendant of the charges he must be prepared to meet, and safeguards the accused from possible double jeopardy. Russel v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Martinez, 496 F.2d 664, 669 (5th Cir.), cert. denied, 419 U.S. 1051, 95 S.Ct. 627, 42 L.Ed.2d 646 (1974). In that the essence of conspiracy is unlawful agreement rather than accomplishment of the unlawful objective, Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy, . . . or to state such object with the detail which would be required in an indictment for committing the substantive offense. Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545 (1927) (citations omitted). Accord, United States v. Evans, 572 F.2d 455, 483 (5th Cir. 1978); United States v. Fischetti, 450 F.2d 34, 40 (5th Cir.), cert. denied, 405 U.S. 1016, 92" } ]

[ { "docid": "22803310", "title": "", "text": "The Court noted that lack of control of pro se prisoners over delays extends much further than that of the typical civil litigant: pro se prisoners have no control over delay between the prison authorities’ receipt of the notice and its filing, and their lack of freedom bars them from delivering the notice to the court clerk personally. Id. See also Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964) (defendant in a criminal case demonstrated that he did all that could reasonably be expected to file his notice of appeal within the 10-day limit and was unable to serve notice of appeal any sooner). Houston indicates that in the case of pro se prisoners, the Supreme Court is particularly solicitous of preserving the right to appeal where the impediment to timely filing concerns the process of transmitting mail from the prison over which the prisoner has no control. Although Houston concerned a late notice of appeal, its reasoning seems indistinguishable in the context of a Rule 59(e) motion, given the capacity of late Rule 59(e) motions to eviscerate appeals and the analogous rigid time limitations. Indeed, we note that in many respects treating a Rule 59(e) motion as served at the time it is delivered to the prison officials presents an easier case than the facts of Houston. First, the time lim its for Rule 59(e) motions are shorter than those for notices of appeal and hence the potential for prison delay becomes more significant. Second, Rule 59(e) requires service, which logically seems closer to delivery to the warden than the Fed. R. App. P. 4 filing requirement. If the Court was willing to deem an appeal filed by virtue of delivery to prison officials, it would seem a fortiori that such delivery should satisfy the service requirement of Rule 59(e) motions. Unfortunately for Smith, the rule of Houston, even when extended to Fed. R. Civ. P. 59(e) motions, does not render his motion timely, for we cannot conclude that prison delay in transmitting Smith’s motion contributed to the lateness of the motion. On" } ]

[ { "docid": "22884736", "title": "", "text": "record, we note that Duke filed three “Certificates of Service” with his motion to reconsider. The three certificates of service were signed by Duke with the typewritten date of August 30, 1993. Thus, assuming that the August 30 date is correct and applying the method of calculating time provided in Rule 6(a) of the Federal Rules of Civil Procedure, it appears that Duke’s motion for reconsideration was timely served on the tenth day after entry of judgment and tolled the period for the filing of a notice of appeal. Under the version of Federal Rule of Appellate Procedure 4(a)(4) in effect prior to December 1, 1993, any notice of appeal filed before the disposition of a tolling motion would be a nullity. However, the amended version of Rule 4(a)(4) that went into effect on December 1, 1993, provides that when a notice of appeal is filed before the trial court rules on a pending tolling motion, the notice of appeal lies dormant until the trial court disposes of the pending motion. Upon such disposition, the notice becomes effective. The Supreme Court has stated that the 1993 amendments to the rules were to apply to all proceedings in appellate cases commenced after December 1, 1993, and insofar as “just and practicable” to all proceedings in appellate cases then pending. 113 S.Ct. 819 (1992). Several circuit courts of appeal have used this “just and practicable” language to apply Rule 4(a)(4), as amended, retroactively. Schroeder v. McDonald, 41 F.3d 1272 (9th Cir.1994); Barber v. Whirlpool Corp., 34 F.3d 1268 (4th Cir.1994); Narey v. Dean, 32 F.3d 1521 (11th Cir.1994); Burt v. Ware, 14 F.3d 256 (5th Cir.1994) (Burt). In Hulsey v. Sargent, 15 F.3d 115 (8th Cir.1994), we applied the earlier version of Rule 4(a)(4) in dismissing an appeal for lack of jurisdiction, even though the appeal was pending as of December 1, 1993. However, the determination of when it is “just and practicable” to retroactively apply Rule 4(a)(4), as amended, is necessarily a case-by-case consideration. In the present case, the government itself concedes the ripeness of the appeal. See Brief for Appellee" }, { "docid": "22884734", "title": "", "text": "Rule 59(e) motion and a Rule 60(b) motion that has a tolling effect under Rule 4(a)(4)(F) need only be “served” within ten days of the entry of judgment. Therefore, September 2 is not necessarily the dispositive date. Furthermore, Rule 5(b) of the Federal Rules of Civil Procedure provides that service by mail is complete upon mailing. Additionally, we note that Duke filed his motion for reconsideration pro se and while incarcerated. In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (Houston), the Supreme Court created what might be called the “prison mailbox rule.” The Supreme Court held as timely filed a pro se notice of appeal from the denial of habeas relief deposited by an inmate with prison authorities for mailing within the thirty-day period fixed by Rule 4(a) of the Federal Rules of Appellate Procedure for the filing of a notice of appeal. Id. at 270, 108 S.Ct. at 2382. The Supreme Court stated that “the Court of Appeals had jurisdiction over petitioner’s appeal because the notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” Id. at 276, 108 S.Ct. at 2385. The rule in Houston is now restated in the Federal Rules of Appellate Procedure. See Fed.R.App.P. 4(c). Rule 4(e) provides: “If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing.” We believe that the rationale of Houston and the new Rule 4(c) applies with equal force to a motion which, under Rule 4(a)(4), tolls the time for the filing of a notice of appeal. Accord Smith v. Evans, 853 F.2d 155, 162 (3d Cir.1988). Thus, we hold that Duke’s motion for reconsideration should be deemed timely served if it was delivered to prison authorities for mailing within the ten-day time period of Fed.R.Civ.P. 59(e) and Fed R.App.P. 4(a)(4)(F). Upon review of the district court" }, { "docid": "22791406", "title": "", "text": "district court order in a criminal action is not expressly authorized by the Federal Rules of Criminal Procedure,” the filing of such a motion within the 14-day period for filing a notice of appeal “tolls the time for filing a notice of appeal and the time begins to run anew following disposition of the motion.” United States v. Vicaria, 963 F.2d 1412, 1413-14 (11th Cir.1992) (citing United States v. Dieter, 429 U.S. 6, 8-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976)). “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n. 2 (11th Cir.2009); see Fed. R.App. P. 4(c)(1) (“If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing.”). Unless there is evidence to the contrary, like prison logs or other records, we assume that a prisoner’s motion was delivered to prison authorities on the day he signed it. See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir.2001). The district court denied Glover’s § 3582(c)(2) motion on December 22, 2011, and Glover signed his motion for reconsideration 14 days later on January 5, 2012, which tolled the period for filing a notice of appeal. See Vicaria, 963 F.2d at 1413-14. The district court denied the motion for reconsideration on January 17, 2012, which restarted Glover’s 14-day period for filing a notice of appeal. See id. Glover signed a notice of appeal 7 days later on January 24, 2012, so his appeal is timely. III. Now for the merits issue. Glover contends that the combined force of Amendments 750 and 759 to the sentencing guidelines makes him eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). We review de novo a district court’s conclusion that a defendant is not eligible for a sentence reduction under § 3582(c)(2). See Mills, 613 F.3d at" }, { "docid": "23292652", "title": "", "text": "at 736). . Compare Fed.R.App. P. 4(a)(1) (“[T]he notice of appeal required by Rule 3 must filed with the clerk of the district court within 30 days of the date of entry of the judgment....”) with Fed. R.Civ. P. 5(e) (“The filing of the papers with the court as required by these rules shall be made by filing them with the clerk of the court....”). . See Houston, 487 U.S. at 270, 108 S.Ct. at 2382. In 1993, after the Houston opinion was handed down, FedR.App. P. 4 was amended to adopt the mailbox rule for all prisoner notices of appeal. Rule 4(c) now reads, “If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing.” See Fed.R.App P. 4(c). The fact that similar changes have not been made to Fed.R.Civ.P. 5(e) is of no moment: Different committees draft changes to the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure; and neither the committees nor Congress is under an obligation to consider and incorporate every possible implication of Supreme Court rulings. . See Hamm v. Moore, 984 F.2d 890, 892 (8th Cir.1992) (citing Hostler v. Groves, 912 F.2d 1158, 1161 (9th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991)). . As there is no federal statute of limitations for § 1983 actions, the federal courts borrow the forum state's general personal injury limitations period. See Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.1992); Ali v. Higgs, 892 F.2d 438, 439 (5th Cir.1990). The applicable statute of limitations in Texas is two years. See Tex.Civ. Prac. & Rem.Code Ann. § 16.003(a) (Vernon’s 1986). The Ector County officials also attempt to distinguish this case from Houston on the grounds that the failure to file a notice of appeal in a timely manner raises a jurisdictional barrier to review, whereas the filing of a complaint beyond the limitations" }, { "docid": "5587926", "title": "", "text": "judgment in favor of the defendants on October 1, 1991. On October 31, 1991, Hamm submitted his notice of appeal to David Hull, a prison case worker, who notarized it. Hull informed Hamm that the document probably would not be mailed until the next day. Hamm dated his certificate of mailing November 1, 1991, and the notice was mailed on that date. The notice of. appeal was stamped as filed in the district court clerk’s office on November 4, ,1991. We appointed counsel to assist Hamm on appeal and requested supplemental briefing on two issues: 1) whether Hamm’s notice of appeal was timely under Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), and 2) whether prison officials may, in the light of Flittie v. Solem, 827 F.2d 276 (8th Cir.1987), punish or harass an inmate for the legal assistance he provides other inmates after having granted him permission to render such assistance. We address these issues in turn. II. In Houston v. Lack, the Supreme Court held as timely filed a pro se notice of appeal deposited by an inmate with , prison authorities for mailing within the thirty-day period fixed by Fed.R.App.P. 4(a) for the filing of a notice of appeal. The Court held that “the Court of Appeals had jurisdiction over petitioner’s appeal because the notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” 487 U.S. at 276, 108 S.Ct. at 2385. The Court reasoned that Houston lost control over and contact with his notice of appeal when he delivered it to the prison authorities and not when the clerk received it. Id. at 275, 108 S.Ct. at 2384. The Court observed that Fed. R.App.P. 4(a) contemplates a civil litigant who chooses to mail a notice of appeal and who should thus assume the risk of untimely delivery and filing. Id. By contrast, a pro se prisoner has no choice but to submit his notice to prison authorities for forwarding to the court clerk. Id. The question before us is whether" }, { "docid": "23216974", "title": "", "text": "way, Schroeder filed in a timely manner. If judgment were entered on December 3, 1992, then Schroeder was required to serve his motion for reconsideration by December 17,1992, which was the tenth day for serving purposes after the entry of judgment on December 3, 1992. See Fed.R.Civ.P. 6(a). “[A]n incarcerated pro se litigant completes ‘service’ under Fed.R.Civ.P. 5(b) upon submission to prison authorities for forwarding to the party to be served.” Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir.1993); see Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992) (holding that the Houston filing rule that an incarcerated pro se litigant files a notice of appeal on the day he delivers it to prison authorities for forwarding to the district court applies equally to other filings, including Rule 59(e) motions); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988) (holding that the Houston filing rule applies to Rule 59(e) motions). Schroeder submitted his documents to prison authorities for mailing on December 13, 1992. Schroeder was still a pro se litigant at this time. Accordingly, Schroeder served the motion on December 13, 1992, which was within the ten-day period set by Rule 59(e). If, on the other hand, judgment was never entered because the order 'was never set forth on a separate document, Schroeder still filed his motion within ten days because the clock never started- to run. Therefore, Schroeder necessarily served the motion within the ten-day period set by Rule 59(e). Accordingly, Schroeder filed a timely Rule 59(e) motion and defendants filed a notice of appeal before the disposition of that motion. Thus, the issue before us is whether defendants’ notice of appeal may be resurrected by a retroactive application of the amended version of Rule 4(a)(4). See Wallis v. J.B. Simplot Co., 26 F.3d 885, 888 (9th Cir.1994) (applying amended Rule 4(a)(4) retroactively); Leader Nat’l Ins. Co. v. Industrial Indem. Ins. Co., 19 F.3d 444, 445 (9th Cir.1994) (applying amended Rule 4(a)(4) retroactively); Burt v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (holding amended Rule 4(a)(4) applies retroactively unless it would work an injustice) (per curiam). The" }, { "docid": "22568247", "title": "", "text": "part, that the district court \"may reopen the time to file an appeal for a period of 14 days” if (1) the court determines the movant did not receive notice of the entry of the appealable order within 21 days of its entry; (2) the motion is filed in the earlier period of 180 days of the appealable order’s entry or 14 days after the moving party receives notice; and (3) the court determines that no party would be prejudiced by reopening the time to appeal. Fed. R.App. P. 4(a)(6)(A)-(C). . As mentioned supra note 4, the Supreme Court has held that a prisoner’s notice of appeal is deemed filed upon delivery to the prison mail system. See Houston, 487 U.S. at 276, 108 S.Ct. 2379. A variation of that rule is currently embodied in Appellate Rule 4(c). . After first observing that the time to appeal an order entered on a § 2255 motion is gov erned by Appellate Rule 4(a), we began our tolling discussion in Fiorelli by evaluating \"the applicability of the Federal Rules of Civil Procedure to [Fiorelli’s] § 2255 motion.” Fiorelli, 337 F.3d at 285. We stated that we were considering \"the requirement under Civil Rule 58 that judgments be set forth on a separate document and entered in the docket of the district clerk, and the time limitations accompanying motions for reconsideration under Civil Rules 59 and 60,” id. at 286; we concluded that those civil rules applied in the § 2255 context, see id. at 286-87; and we proceeded to evaluate whether Fiorelli’s untimely motion under Rule 59(e) could permit his appeal to be properly filed under Appellate Rule 4(a)(4)(A), see id. at 287-88. . More specifically, the delay in Poole occurred because the clerk's office mailed the notice to a prison where, by the time the letter arrived, Poole was no longer incarcerated. Poole, 368 F.3d at 265. Poole had sent two letters to the district court concerning his change in address. The first, received just before the order was mailed to him, stated that Poole would be \"returning to P.A. 3-24-02" }, { "docid": "22918312", "title": "", "text": "has been effectively abrogated. In Caldwell, decided four years later, a prisoner deposited his notice of appeal in a prison mailbox designated for legal mail. The prisoner filed a declaration that he had deposited the notice on a date that would have complied with the filing deadline under the mailbox rule. If the prisoner had chosen to send the notice by certified mail, the prison would have recorded the date on which it was mailed. However, the prisoner did not do so because of the added cost of certified mail, and the prison accordingly had no record of the date on which it was mailed. Despite the absence of any prison record showing the date of mailing, we held that the prisoner had complied with Houston, and that the date of filing was the date specified in the prisoner’s declaration. Caldwell, 30 F.3d at 1202-03. In Koch v. Ricketts, 68 F.3d 1191 (9th Cir.1995), we relied on a recently adopted amendment to Federal Rule of Appellate Procedure 4(c), which had not been in effect at the time of Miller, to conclude that our interpretation of the Houston mailbox rule in Miller is no longer good law. The amended rule provides: If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement[.] Fed. R.App. P. 4(c)(1). We explicitly noted in our opinion that the advisory committee notes “ma[d]e clear” that “Rule 4(c) was intended to formalize the constructive filing rule of Houston.” 68 F.3d at 1193; see also Fed. R.App. P. 4(c) (1993) advisory committee’s note (“In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the Supreme Court held that a pro" }, { "docid": "22884732", "title": "", "text": "issues will be raised sua sponte by a federal court when there is an indication that jurisdiction is lacking, even if the parties concede the issue.” Id. In the present case we are confronted with two related issues: (1) whether Duke’s motion to reconsider tolled the time for filing a notice of appeal, and (2) if so, whether we should apply Rule 4(a)(4) of the Federal Rules of Appellate Procedure, as amended, retroactively to avoid dismissal of Duke’s appeal. In the past, courts struggled to characterize self-styled “motions for reconsideration” as motions made pursuant to either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., Sanders v. Clemco Indus., 862 F.2d 161, 168-69 (8th Cir.1988). Proper characterization was critical because under the version of Rule 4(a)(4) of the Federal Rules of Appellate Procedure in effect prior to December 1, 1993, a timely served Rule 59(e) motion would toll the time for the filing of a notice of appeal but a Rule 60(b) motion would not. See Fed.R.App.P. 4(a)(4) (1979 version). A 1993 amendment to Rule 4(a)(4) has eliminated this problem by providing that a Rule 60(b) motion served within 10 days of the entry of judgment also tolls the time for the filing of a notice of appeal. Fed.R.App.P. 4(a)(4)(F). Thus, for purposes of our jurisdictional analysis, we can determine whether Duke’s motion for reconsideration tolled the time period for the filing of a notice of appeal without having to decide whether Duke’s motion was made pursuant to Rule 59(e) or Rule 60(b). Because, as discussed below, we conclude that Rule 4(a)(4), as amended, should apply retroactively, we will proceed accordingly. If Duke’s motion for reconsideration was not served within ten days of the entry of judgment, it would not trigger the tolling effect of Rule 4(a)(4). In such case, his notice of appeal, filed on October 13, 1993, would be effective because the sixty-day period for its filing would have expired on October 16, 1993. Duke’s motion for reconsideration was received in the district court clerk’s office on September 2, 1993. However, both a" }, { "docid": "5587927", "title": "", "text": "a pro se notice of appeal deposited by an inmate with , prison authorities for mailing within the thirty-day period fixed by Fed.R.App.P. 4(a) for the filing of a notice of appeal. The Court held that “the Court of Appeals had jurisdiction over petitioner’s appeal because the notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” 487 U.S. at 276, 108 S.Ct. at 2385. The Court reasoned that Houston lost control over and contact with his notice of appeal when he delivered it to the prison authorities and not when the clerk received it. Id. at 275, 108 S.Ct. at 2384. The Court observed that Fed. R.App.P. 4(a) contemplates a civil litigant who chooses to mail a notice of appeal and who should thus assume the risk of untimely delivery and filing. Id. By contrast, a pro se prisoner has no choice but to submit his notice to prison authorities for forwarding to the court clerk. Id. The question before us is whether the rationale of Houston v. Lack should apply to a pro se notice of appeal in a section 1983 action submitted by an inmate to prison authorities for filing within the time fixed by Fed.R.App.P. 4(a). Other circuits that have considered this question have extended the Houston rule to section 1983 suits by pro se prisoners. In Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991), the court observed that “[t]he opinion in Houston gives no indication that its holding should be limited to habeas cases.” The court noted that Houston's underlying policy — that of not penalizing pro se prisoners for delays over which they have no control once they have timely delivered notices of appeal to prison authorities — applies with equal force to section 1983 actions. 912 F.2d at 1161. Moreover, the court recognized that “[i]n fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials.” Id. See" }, { "docid": "22791405", "title": "", "text": "also made that part of Amendment 750 retroactive. See U.S.S.G. § lB1.10(e). Glover filed a pro se motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence, contending that under Amendment 750 his new total offense level is 31 (a base offense level of 34 with a 3-level decrease for acceptance of responsibility), his criminal history category is still II, making his new guidelines range 121 to 151 months in prison. The district court denied that motion after “concluding] that [Glover] is not eligible for a reduction under Amendment 750.” Glover filed a motion for reconsideration, which the district court also denied. This is Glover’s appeal. II. We turn first to the government’s contention that Glover’s appeal is untimely. We review de novo whether an appeal should be dismissed as untimely. See United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir.2009). A criminal defendant has 14 days from the date that an order or judgment is entered to file a notice of appeal. Fed. R.App. P. 4(b)(1)(A). “Although a motion for reconsideration of a district court order in a criminal action is not expressly authorized by the Federal Rules of Criminal Procedure,” the filing of such a motion within the 14-day period for filing a notice of appeal “tolls the time for filing a notice of appeal and the time begins to run anew following disposition of the motion.” United States v. Vicaria, 963 F.2d 1412, 1413-14 (11th Cir.1992) (citing United States v. Dieter, 429 U.S. 6, 8-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976)). “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n. 2 (11th Cir.2009); see Fed. R.App. P. 4(c)(1) (“If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing.”). Unless there is evidence to the contrary, like prison logs" }, { "docid": "6553109", "title": "", "text": "ORDER DENYING PETITIONER’S APPLICATION FOR AN EXTENSION OF TIME TO FILE NOTICE OF APPEAL McMAHON, District Judge. Petitioner’s application for a writ of habeas corpus was denied by this Court. Judgment of dismissal was entered on January 17, 2001. Subsequently, Petitioner filed a notice of appeal, which was received by the Clerk of the Court for the Second Circuit (not the District Court) on February 21, 2001, thirty-five days after the entry of judgment, or five days after the last day for filing same pursuant to the Federal Rules of Appellate Procedure. The notice of appeal was dated and signed on February 12, 2001, twenty-six days after the entry of judgment. Petitioner, who was incarcerated in StommUe, New York, could have filed it on that date simply by delivering the notice of appeal to the authorities at the prison in an envelope addressed to the Clerk of the Court. This is because a pro se prisoner’s notice of appeal is deemed filed on the date that the prisoner “deliverfs] it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), see also Fed. R.App. P. 4(c). However, Petitioner did not deliver the notice of appeal to the prison authorities. Instead, he sent it to his sister, Theresa, who in turn sent it to the Court of Appeals. Her affidavit of service states that she mailed the notice of appeal on February 14, 2001. It was received seven days later — too late to be timely. Petitioner moved in the Court of Appeals for in forma pauperis status and also for a certificate of appealability (which had been denied by this Court). The Court of Appeals dismissed the appeal sua sponte and denied the motions as moot. Holding that the prison mailbox rule established in Houston does not apply where a pro se prisoner delivers his notice of appeal to someone outside the prison system for forwarding to the Court Clerk, Knickerbocker v. Artuz, Docket No. 01-2140, 271 F.3d 35 (2d Cir.2001), it remanded the case to" }, { "docid": "9795938", "title": "", "text": "entered on December 3, 1992, then Schroeder was required to serve his motion for reconsideration by December 17,1992, which was the tenth day for serving purposes after the entry of judgment on December 3, 1992. See Fed.R.Civ.P. 6(a). “[A]n incarcerated pro se litigant completes ‘service’ under Fed.R.Civ.P. 5(b) upon submission to prison authorities for forwarding to the party to be served.” Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir.1993); see Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992) (holding that the Houston filing rule that an incarcerated pro se litigant files a notice of appeal on the day he delivers it to prison authorities for forwarding to the district court applies equally to other filings,' including Rule 59(e) motions); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988) (holding that the Houston filing rule applies to Rule 59(e) motions). Schroeder submitted his documents to prison authorities for mailing on December 13, 1992. Schroeder was still a pro se litigant at this time. Accordingly, Schroeder served the motion on December 13, 1992, which was within the ten-day period set by Rule 59(e). If, on the other hand, judgment was never entered because the order was never set forth on a separate, document, Schroeder still filed his motion within ten days because the clock never started to run. Therefore, Schroeder necessarily served thé motion within the ten-day period set by Rule 59(e). Accordingly, Schroeder filed a timely Rule 59(e) motion and defendants filed a notice of appeal before the disposition of that motion. Thus, the issue before us is whether defendants’ notice of appeal may be resurrected by a retroactive application of the amended version of Rule 4(a)(4). See Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir.1994) (applying amended Rule 4(a)(4) retroactively); Leader Nat’l Ins. Co. v. Industrial Indem. Ins. Co., 19 F.3d 444, 445 (9th Cir.1994) (applying amended Rule 4(a)(4) retroactively); Burt v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (holding amended Rule 4(a)(4) applies retroactively unless it would work an injustice) (per curiam). The Supreme Court has ordered that the amended Rules of Appellate" }, { "docid": "22314642", "title": "", "text": "District Court, and instead argues that the District Court committed an error of law. As a Rule 60(b) motion “may not be used as a substitute for an appeal, and that legal error, without more” does not warrant relief under that provision, we will deem Fiorelli’s motion as a request under Rule 59(e). Smith, 853 F.2d at 158. Federal Rule of Appellate Procedure 4(a)(4) provides that motions under Federal Rules of Civil Procedure 50(b), 52(b), 54, 59, or 60 timely filed in the district court toll the period for filing a notice of appeal until the district court enters an order disposing of the motion. In the case of motions under Rule 59, the “timeliness” requirement of Appellate Rule 4(a)(4)(A) means only motions filed within ten days of the disputed order toll the time limit for filing a notice of appeal. Fed.R.Civ.P. 59(e); see also Fed.R.Civ.P. 6(b) (precluding the enlargement of the time for filing a motion under Civil Rule 59(e)). Here, Fiorelli’s motion for reconsideration was filed as late as April 30, 2001, twenty-one days after the District Court denied his § 2255 motion. On its face, therefore, the motion exceeds the ten-day limit for reconsideration and did not extend the time for filing a notice of appeal. 4. Fiorelli’s appeal may be properly filed if his motion for reconsideration is deemed timely, thus invoking the tolling provision of Appellate Rule 4(a)(4)(A). Tolling might be appropriate given Fiorelli’s averment under penalty of perjury that he received the District Court’s order denying his § 2255 motion “on 4/22/01, during the normal mail distribution at the federal prison where he is confined.” So construed, Fiorelli alleges that the prison’s delay in delivering the District Court’s order should be excluded from the computation of the time to file his motion for reconsideration. The allegation of prison delay is crucial, because if we exclude the period of alleged delay in calculating the ten-day limitation of Civil Rule 59(e), Fior- elli’s motion for reconsideration would be timely and trigger the tolling provision of Appellate Rule 4(a)(4)(A). We have not directly addressed whether the time" }, { "docid": "22314643", "title": "", "text": "days after the District Court denied his § 2255 motion. On its face, therefore, the motion exceeds the ten-day limit for reconsideration and did not extend the time for filing a notice of appeal. 4. Fiorelli’s appeal may be properly filed if his motion for reconsideration is deemed timely, thus invoking the tolling provision of Appellate Rule 4(a)(4)(A). Tolling might be appropriate given Fiorelli’s averment under penalty of perjury that he received the District Court’s order denying his § 2255 motion “on 4/22/01, during the normal mail distribution at the federal prison where he is confined.” So construed, Fiorelli alleges that the prison’s delay in delivering the District Court’s order should be excluded from the computation of the time to file his motion for reconsideration. The allegation of prison delay is crucial, because if we exclude the period of alleged delay in calculating the ten-day limitation of Civil Rule 59(e), Fior- elli’s motion for reconsideration would be timely and trigger the tolling provision of Appellate Rule 4(a)(4)(A). We have not directly addressed whether the time elapsing during the delivery of an appealable order through a prison’s mail system is excluded from the time for.fíling a motion for reconsideration. Our analysis is guided by our decision in United States v. Grana, 864 F.2d 312 (3d Cir.1989) that “in computing the timeliness of filings which are jurisdictional in nature, any delay by prison officials in transmitting notice of a final order or judgment ... should be excluded from the computation.” Id. at 313. In Grana, a prisoner filed a notice of appeal fifteen days after the expiration of the ten-day limitation specified in Federal Rule of Appellate Procedure 4(b)(1)(A), but alleged that the prison negligently handled his incoming mail, delaying his receipt of the district court’s final order until after the expiration of the appeal period. We viewed incoming mail delays impacting the timeliness of an appeal as analogous to the outgoing delays addressed by the Supreme Court in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). In Houston, the Supreme Court applied the “mailbox rule” to" }, { "docid": "22884735", "title": "", "text": "was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” Id. at 276, 108 S.Ct. at 2385. The rule in Houston is now restated in the Federal Rules of Appellate Procedure. See Fed.R.App.P. 4(c). Rule 4(e) provides: “If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing.” We believe that the rationale of Houston and the new Rule 4(c) applies with equal force to a motion which, under Rule 4(a)(4), tolls the time for the filing of a notice of appeal. Accord Smith v. Evans, 853 F.2d 155, 162 (3d Cir.1988). Thus, we hold that Duke’s motion for reconsideration should be deemed timely served if it was delivered to prison authorities for mailing within the ten-day time period of Fed.R.Civ.P. 59(e) and Fed R.App.P. 4(a)(4)(F). Upon review of the district court record, we note that Duke filed three “Certificates of Service” with his motion to reconsider. The three certificates of service were signed by Duke with the typewritten date of August 30, 1993. Thus, assuming that the August 30 date is correct and applying the method of calculating time provided in Rule 6(a) of the Federal Rules of Civil Procedure, it appears that Duke’s motion for reconsideration was timely served on the tenth day after entry of judgment and tolled the period for the filing of a notice of appeal. Under the version of Federal Rule of Appellate Procedure 4(a)(4) in effect prior to December 1, 1993, any notice of appeal filed before the disposition of a tolling motion would be a nullity. However, the amended version of Rule 4(a)(4) that went into effect on December 1, 1993, provides that when a notice of appeal is filed before the trial court rules on a pending tolling motion, the notice of appeal lies dormant until the trial court disposes of the pending motion. Upon such disposition, the" }, { "docid": "23292651", "title": "", "text": "F.2d 513, 515 (5th Cir.1993) (extending Houston 's mailbox rule to pro se prisoners’ written objections to a magistrate’s proposed findings and recommendations). . See Houston, 487 U.S. at 275-76, 108 S.Ct. at 2384-85. . Houston, 487 U.S. at 271, 108 S.Ct. at 2382-83; see also id. at 276, 108 S.Ct. at 2385. . See Houston, 487 U.S. at 270-71, 108 S.Ct. at 2382-83; Dory, 999 F.2d at 682. . See Houston, 487 U.S. at 271, 108 S.Ct. at 2382-83. . It should be noted that Cooper filed his § 1983 complaint against the Ector County officials while he was incarcerated in an independent, federal prison system. The authorities who received his complaint therefore had less reason to delay than if they themselves had been named defendants. Nonetheless, this distinction is insufficient to merit the conclusion that the Houston rule should not apply to Cooper's case, as it can be assumed that prison officials generally are less than enthusiastic about facilitating the lawsuits of prisoners. . Garvey, 993 F.2d at 782 (citing Lewis, 947 F.2d at 736). . Compare Fed.R.App. P. 4(a)(1) (“[T]he notice of appeal required by Rule 3 must filed with the clerk of the district court within 30 days of the date of entry of the judgment....”) with Fed. R.Civ. P. 5(e) (“The filing of the papers with the court as required by these rules shall be made by filing them with the clerk of the court....”). . See Houston, 487 U.S. at 270, 108 S.Ct. at 2382. In 1993, after the Houston opinion was handed down, FedR.App. P. 4 was amended to adopt the mailbox rule for all prisoner notices of appeal. Rule 4(c) now reads, “If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing.” See Fed.R.App P. 4(c). The fact that similar changes have not been made to Fed.R.Civ.P. 5(e) is of no moment: Different committees draft changes" }, { "docid": "22884733", "title": "", "text": "A 1993 amendment to Rule 4(a)(4) has eliminated this problem by providing that a Rule 60(b) motion served within 10 days of the entry of judgment also tolls the time for the filing of a notice of appeal. Fed.R.App.P. 4(a)(4)(F). Thus, for purposes of our jurisdictional analysis, we can determine whether Duke’s motion for reconsideration tolled the time period for the filing of a notice of appeal without having to decide whether Duke’s motion was made pursuant to Rule 59(e) or Rule 60(b). Because, as discussed below, we conclude that Rule 4(a)(4), as amended, should apply retroactively, we will proceed accordingly. If Duke’s motion for reconsideration was not served within ten days of the entry of judgment, it would not trigger the tolling effect of Rule 4(a)(4). In such case, his notice of appeal, filed on October 13, 1993, would be effective because the sixty-day period for its filing would have expired on October 16, 1993. Duke’s motion for reconsideration was received in the district court clerk’s office on September 2, 1993. However, both a Rule 59(e) motion and a Rule 60(b) motion that has a tolling effect under Rule 4(a)(4)(F) need only be “served” within ten days of the entry of judgment. Therefore, September 2 is not necessarily the dispositive date. Furthermore, Rule 5(b) of the Federal Rules of Civil Procedure provides that service by mail is complete upon mailing. Additionally, we note that Duke filed his motion for reconsideration pro se and while incarcerated. In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (Houston), the Supreme Court created what might be called the “prison mailbox rule.” The Supreme Court held as timely filed a pro se notice of appeal from the denial of habeas relief deposited by an inmate with prison authorities for mailing within the thirty-day period fixed by Rule 4(a) of the Federal Rules of Appellate Procedure for the filing of a notice of appeal. Id. at 270, 108 S.Ct. at 2382. The Supreme Court stated that “the Court of Appeals had jurisdiction over petitioner’s appeal because the notice of appeal" }, { "docid": "23696862", "title": "", "text": "the district court’s order, plaintiff filed both a response to the motion for summary judgment and written objections to the magistrate judge’s report and recommendation. The response was filed on June 25, 1993, and the written objections on March 4, 1994. The response and the written objections may have been untimely filed. The response was due on June 18,1993, and the written objections on March 3, 1994. Under Fed.R.Civ.P. 56(c) and (e), the adverse party is to “serve” a response to the motion for summary judgment by affidavits or otherwise. Under Fed.R.Civ.P. 72(b), a party is to “serve” and file specific written objections to the proposed findings and recommendations of a magistrate judge. “Service” may be accomplished by mail, and “[sjervice by mail is complete upon mailing.” Fed.R.Civ.P. 5(b). The addition of 3 days for service by mail pursuant to Fed.R.Civ.P. 6(e) would arguably make the written objections timely but not the response to the motion for summary judgment. However, both the response and the written objections would be timely filed under the rule announced in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), in which the Supreme Court held as timely filed a pro se notice of appeal in a habeas case deposited by an inmate with prison authorities for mailing within the 30-day period fixed by Fed.R.App.P. 4(a) for the filing of a notice of appeal. See Fed. R.App.P. 4(c) (amendment of rule to reflect decision in Houston v. Lack). We need not decide whether to extend the rule in Houston v. Lack to filings other than notices of appeal because, even if the rule were not extended here, the district court should reconsider whether the dismissal with prejudice for failure to prosecute should stand in light of the evidence plaintiff has presented. If we extended the rule in Houston v. Lack to all pro se prisoner filings in § 1983 actions or to written objections to magistrate judges’ reports and recommendations, then plaintiffs response and written objections were not untimely filed because, as plaintiff explained, he deposited the response in the prison" }, { "docid": "22884731", "title": "", "text": "informant, who successfully negotiated a drug deal with one of Duke’s sons and one of his nephews. The undercover deal led to Duke’s arrest. II. DISCUSSION A. Appellate Jurisdiction Duke filed a pro se motion for federal post-conviction relief pursuant to 28 U.S.C. § 2255 in the United States District Court for the District of Minnesota on January 6, 1993. The district court entered final judgment denying his motion on August 16, 1993. Duke then filed a “Motion for Reconsideration” which the district court clerk’s office stamped “received” on September 2, 1993. That motion was still pending when, on October 13, 1993, Duke filed a notice of appeal from the August 16,1993, order. Because of the unusual procedural posture of this case, we find it necessary to consider our jurisdiction. The parties’ failure to discuss the question of appellate jurisdiction in their briefs does not preclude our own examination of the question. “[E]very federal court has a special obligation to consider its own jurisdiction.” Thomas v. Basham, 931 F.2d 521, 523 (8th Cir.1991). Moreover, “jurisdiction issues will be raised sua sponte by a federal court when there is an indication that jurisdiction is lacking, even if the parties concede the issue.” Id. In the present case we are confronted with two related issues: (1) whether Duke’s motion to reconsider tolled the time for filing a notice of appeal, and (2) if so, whether we should apply Rule 4(a)(4) of the Federal Rules of Appellate Procedure, as amended, retroactively to avoid dismissal of Duke’s appeal. In the past, courts struggled to characterize self-styled “motions for reconsideration” as motions made pursuant to either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., Sanders v. Clemco Indus., 862 F.2d 161, 168-69 (8th Cir.1988). Proper characterization was critical because under the version of Rule 4(a)(4) of the Federal Rules of Appellate Procedure in effect prior to December 1, 1993, a timely served Rule 59(e) motion would toll the time for the filing of a notice of appeal but a Rule 60(b) motion would not. See Fed.R.App.P. 4(a)(4) (1979 version)." } ]

[ { "docid": "12691291", "title": "", "text": "the complaint that is at issue does not contain these allegations nor were they addressed in the Claims Court decision now appealed. Thus, on the facts as alleged, there has as yet been no physical taking. The Supreme Court has not developed a set formula for determining whether a taking of property has occurred. Rather, that determination is made by engaging in ad hoc, factual inquiries into the circumstances of each particular case. Connolly v. Pension Benefit Guar. Corp., 475 U.S. at 224, 106 S.Ct. at 1025. Three factors have “particular significance”: (1) the character of the government action; (2) the economic impact of the regulation on the plaintiff; and (3) the extent to which the regulation has interfered with distinct investment-backed expectations. Id. at 224-25, 106 S.Ct. at 1025-26. See also Chang v. United States, 859 F.2d 893, 895 (Fed.Cir.1988). It is not necessary in every case to undertake an evidentiary hearing on the issue of whether a taking has occurred. Summary dismissal of a taking claim is appropriate where the circumstances alleged in the complaint, even if taken as true and all reasonable inferences are drawn in favor of the plaintiff, cannot establish that a taking has occurred. See Chang (motion to dismiss for failure to state a claim); Allied-General Nuclear Services v. United States, 839 F.2d 1572 (Fed.Cir.) (summary judgment), cert. denied, — U.S. -, 109 S.Ct. 61, 102 L.Ed.2d 39 (1988). In this case, examination of the circumstances alleged by Western Nuclear in light of the three factors set forth by the Supreme Court shows that the Claims Court correctly dismissed Western Nuclear’s taking claim. 1. The Nature of the Government Action. The Supreme Court has recognized that the nature of the government’s action is “critical” in the determination of whether a taking has occurred. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 488, 107 S.Ct. 1232, 1243, 94 L.Ed.2d 472 (1987). In this case, the government action is the regulatory requirement to spend money for tailings stabilization and mill decommissioning as a condition of license termination. 42 U.S.C. § 2113. That action does not" } ]

[ { "docid": "19956784", "title": "", "text": "unlawfully; and, secondly, whether the Coast Guard’s acts of destroying and sinking plaintiffs’ vessel constitute a compensable taking within the meaning of the Fifth Amendment of the United States Constitution, or whether their actions are a valid exercise of the Government’s police power and, therefore, not a compensable taking. Under the rules of this court, evaluations of a motion to dismiss for lack of jurisdiction are usually limited to the pleadings, and the unchallenged facts alleged in the complaint are deemed to be true and are construed in a light most favorable to the plaintiffs. RCFC 12(b)(1); Cupey Bajo Nursing Home, Inc. v. United States, 23 Cl.Ct. 406, 411 (1991). Similarly, when considering a motion to dismiss for failure to state a claim upon which relief can be granted, the factual allegations in the complaint are taken as true and all reasonable inferences are drawn in favor of the plaintiffs. RCFC 12(b)(4); Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209 (1986); Marshall v. United States, 21 Cl.Ct. 497, 499 (1990). The standard for dismissal mandates that the court may not dismiss a complaint “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957), quoted in Kinne v. United States, 21 Cl.Ct. 104, 107 (1990). I. Allegations Which Sound in Tort Fall Outside the Court’s Jurisdiction. The Court of Claims, this court’s predecessor, concluded in Armijo v. United States, 229 Ct.Cl. 34, 663 F.2d 90 (1981), a regulatory takings case, that “[i]n such cases the characteristic feature is the defendant’s use of rightful property, contract, or regulatory rights to control and prevent exercise of ownership rights the defendant is unwilling to purchase and pay for.” 229 Ct.Cl. at 37, 663 F.2d at 93 (emphasis added), quoted in Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 899 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); Torres v. United States," }, { "docid": "3723911", "title": "", "text": "additionally argue that they were “forced to abandon their hydraulic mining operation because of permit limitations and conditions impossible to comply with at this site” and that the government “deprived Plaintiffs of their valuable property right (water rights) and their ability to produce a livelihood from their mining property.” The Rybacheks seek damages of $51,000,000. DISCUSSION Failure to State a Claim The government asserts that the plaintiffs’ takings theory is that the United States, through the EPA, acted illegally, in disregard of its own statutes and regulations, resulting in a taking. “The Tucker Act suit in the Claims Court is not ... available to recover damages for unauthorized actions of government officials.” Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 898 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); see also Torres v. United States, 15 Cl.Ct. 212, 215 (1988). The government concludes that this court does not have jurisdiction, and the complaint should be dismissed because the plaintiffs pled that illegal government acts resulted in the taking. This court reads the plaintiffs’ complaint as setting forth three separate causes of action: (1) a due process claim; (2) a claim that the government’s failure to act deprived the plaintiffs of adequate income; and (3) a takings claim that government permit limitations and conditions deprived the plaintiffs of their property. This court does not have jurisdiction over the plaintiffs’ claim for money based on alleged violations of due process rights, and therefore this claim is dismissed. See, e.g., Cabrera v. United States, 10 Cl.Ct. 219, 221-22 (1986). This court does not recognize a cause of action for government failure to act resulting in deprivation of adequate income, and this cause of action is also dismissed. However, paragraph V states a cause of action for deprivation of property by government permit limitations and conditions. This claim is separate and apart from the paragraph III due process claim. Paragraph V does not indicate that the permit limitations and conditions were illegal or unlawful. This position is consistent with the Rybacheks’ statement, in the Joint Preliminary Status" }, { "docid": "3723910", "title": "", "text": "placer mining and the application of the CWA to this activity). The Rybacheks contend that the limitations and conditions of their discharge permit forced them to curtail the hydraulic removal of overburden and made mining the property unprofitable. The Rybacheks allege that mining is the only economically viable use of their land, and that the land can be successfully mined only by means of hydraulic removal of overburden. Paragraph III of the amended complaint asserts a variety of instances in which the Rybacheks contend that EPA did not follow its own statutes and regulations. The Rybacheks contend that EPA’s failure to follow its own statutes and regulations “deprived plaintiffs of valuable property rights and livelihood without procedural due process ... under the 5th Amendment to the Constitution.” In paragraph IV, the Rybacheks also assert that EPA’s failure to undertake actions previously mentioned and certain other actions, as required by the Clean Water Act, deprived the Ryba-cheks of “adequate income during the past 10 years” and ask for damages of $1,000,-000. In paragraph V, the Rybacheks additionally argue that they were “forced to abandon their hydraulic mining operation because of permit limitations and conditions impossible to comply with at this site” and that the government “deprived Plaintiffs of their valuable property right (water rights) and their ability to produce a livelihood from their mining property.” The Rybacheks seek damages of $51,000,000. DISCUSSION Failure to State a Claim The government asserts that the plaintiffs’ takings theory is that the United States, through the EPA, acted illegally, in disregard of its own statutes and regulations, resulting in a taking. “The Tucker Act suit in the Claims Court is not ... available to recover damages for unauthorized actions of government officials.” Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 898 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); see also Torres v. United States, 15 Cl.Ct. 212, 215 (1988). The government concludes that this court does not have jurisdiction, and the complaint should be dismissed because the plaintiffs pled that illegal government acts resulted in the taking." }, { "docid": "21340757", "title": "", "text": "than bare allegations of authority. Plaintiff’s showing is insufficient to withstand summary judgment. Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831, 836 (Fed.Cir.1984) (counter-affidavit or counter-statement of fact required to defeat summary judgment); see Levi Strauss & Co. v. Genesco, Inc., 742 F.2d 1401,1404 (Fed.Cir. 1984) (mere assertions by counsel that factual issues exist is insufficient to avoid summary judgment). Plaintiff has failed to establish a cognizable contract claim within the jurisdiction of the court. 3. The fifth amendment taking claim The Tucker Act gives the Court of Federal Claims jurisdiction over claims for damages based on a violation of a source of law set forth in the Act which can fairly be interpreted as mandating the payment of compensation by the Federal Government. United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976). A taking occurs when the rightful property, contract, or regulatory powers of the Government are employed to control rights or property which have not been purchased. Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 898-99 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987). Thus, if rights or property are taken through unlawful action, there is no taking. Id. In the context of a summary judgment motion, if a plaintiff alleges that the Government acted illegally, the averment must be taken as true. Because a taking can only occur when the Government acts lawfully, alleging that property was taken unlawfully eliminates the foundation of a takings claim. There is a difference between government action that constitutes an exercise of the police power and action that constitutes a compensable taking. If the Government acts to secure a benefit for the public, a taking arises. Government action taken to prevent harm to the public is an exercise of the police power. Scope Enterprises, 18 Cl.Ct. at 883. Government action aimed at protecting the life, health, and property of its citizens “traditionally has constituted a non-compensable exercise of the Government’s police power.” Jarboe-Lackey Feedlots, Inc. v. United States, 1 Cl.Ct. 329, 338-339 (1985) (citing" }, { "docid": "23691133", "title": "", "text": "S.Ct. 335, 350 n. 16, 42 L.Ed.2d 320 (1974). Indeed, it appears from the record that the mapping error was nothing but a mistake made by the government's map drafters. Perhaps this error was a by-product of the government's condemnation action against this property and related properties during the 50s when bombing first started. It is settled, though, that a taking occurs, and compensation as allowed by the Fifth Amendment must be paid, when there has been a legal action by the government. Illegal government actions do not result in takings. The record in this matter shows that the government had no right to bomb the land, and that the government bombed under no color of statute or regulation. It made a mistake. Cf. Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 898-99 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987) (no taking if the government has not been authorized to act). The court surmises that Catellus’ claim, if there is a claim at all, may in fact be a due process claim, or sound in tort. See Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802-03 (Fed.Cir.1993). Cf. Bellamy v. United States, 7 Cl.Ct. 720, 723 (1985) (plaintiff's complaint sounded in due process, thus no jurisdiction). . In his August 24, 1989 letter, Lt. Colonel Taylor advised that the Corps’ Explosive Ordnance Disposal team had conducted periodic sweeps of the area, but that was only a mitigating action and in no way guaranteed that the danger has been abated. In 1984 such a sweep was conducted. The results of these sweeps apparently did not uncover any unexploded ordnance on Catellus’ property, if indeed it swept Catellus' property. However, the Corps could not say with certainty that there was no unexploded ordnance on Catellus’ sections." }, { "docid": "14417225", "title": "", "text": "16 U.S.C. § 1532(5)(A). Where critical habitat has been designated, agency consultations must consider not only actions that might affect the listed species, but also actions that are likely to result in the destruction or adverse modification of this designated habitat. 16 U.S.C. § 1536(a)(2). The FWS did not designate critical habitat for either the endangered rabbit or rat. 55 Fed.Reg. at 25,590 (endangered marsh rabbit), 56 Fed. Reg. at 19,813 (endangered silver rice rat). Accordingly, plaintiff's allusion to this designation is devoid of substance. Sugarloaf Shores was not so designated, and did not have this special status. . In order to bring a takings claim before this court, plaintiff must concede the validity of the agency action that is the subject of his claim. This jurisdictional requirement stems from the fact that the \"[t]he Tucker Act suit in the Claims Court is not ... available to recover damages for unauthorized acts of government officials.” Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 898 (Fed.Cir.1986) (emphasis added), cert, denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); see also Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed.Cir.1993). Defendant argues that this portion of plaintiff's Lucas claim is not within the court’s jurisdiction, see 28 U.S.C. § 1491(a)(1), because it effectively challenges the scientific validity of the FWS determinations. In response, plaintiff concedes that this inquiry would be improper, and asserts that he does not challenge the validity of FWS scientific determinations, but rather the legal conclusions drawn from those determinations. In accord with plaintiff's concession, only the legal conclusions drawn from those FWS determinations were considered here. . Accordingly, plaintiff's argument that development would expose him to civil or criminal prosecution by the FWS under the ESA is without merit. Any incidental take could be permitted by the FWS, and accordingly would not be a violation of the Act. Plaintiff misreads the ESA citizen suit provision when he argues that, even if the FWS would not bring such a suit, that a \"bunny lover fan club\" could do so. This provision only allows" }, { "docid": "6497524", "title": "", "text": "taking. The Supreme Court has recognized that, on rare occasions, a governmental land use regulation may affect property in such a manner as to constitute a fifth amendment taking, if the regulation either does not “substantially advance legitimate state interests,” or if it “denies an owner economically viable use of his land.” Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980) (citing Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928)); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138 n. 36, 98 S.Ct. 2646, 2666 n. 36, 57 L.Ed.2d 631 (1978). See also Riverside Bayview Homes, supra, 474 U.S. at 126, 106 S.Ct. at 458-59; Loveladies Harbor, Inc. v. United States, 21 Cl.Ct. 153, 155 (1990). Plaintiffs do not challenge the exercise of the Corps’ § 404 jurisdiction as a substantial advancement of legitimate state interests. Instead, plaintiffs claim they have been denied economically viable use of their land as a result of the Corps’ exercise of its § 404 jurisdiction. Federal courts have identified three factors important in the determination of whether there has been a deprivation of the economically viable use of land involved in regulatory taking suits: [1] the character of the government action; [2] the economic impact of the regulation on plaintiffs; and [3] the extent to which the regulation has interfered with plaintiffs’ reasonable investment-backed expectations. See Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224-25, 106 S.Ct. 1018, 1025-26, 89 L.Ed.2d 166 (1986); Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 901 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); Loveladies Harbor, supra, 21 Cl.Ct. at 155. A. Plaintiffs’ Permanent Taking Claim Plaintiffs argue they have been permanently deprived of economically viable use of 42 acres of their land, which they claim the Corps refuses to specifically identify as nonwetlands because the nonwetlands acres are intermingled with the wetlands acres. Plaintiffs do not explain how they have been permanently deprived of these acres since plaintiffs received their § 404 permits," }, { "docid": "1848080", "title": "", "text": "the passage not only of the state regulatory scheme, but also the Clean Water Act itself. See Federal Water Pollution Control Act, P.L. 92-500, 86 Stat. 816 (1972); Delaware Wetlands Act, Del.Code Ann. Tit. 7, §§ 6601, et seq. (1973). Plaintiffs argue that they invested in the property with the expectation that they would be permitted to develop fully the property. Whether that expectation was reasonable and whether the subsequently enacted regulatory schemes were foreseeable are again questions of fact requiring further elucidation at trial. Accordingly, material and genuine questions of fact exist here as to at least two prongs of the Penn Central test. Therefore, neither party is entitled to summary judgment on the issue whether plaintiffs suffered a permanent taking of their property. 2. Temporary Taking Claim In evaluating temporary takings claims, courts generally focus on two elements. First, they look to whether the government’s actions have temporarily deprived the property owner of all or substantially all economically viable use of their property. See, e.g., Anaheim Gardens v. United States, 33 Fed.Cl. 24, 36 (1995) (“In order to prevail on a temporary taking claim, a plaintiff must show that substantially all economic use of its property was denied during the period in question.”); 1902 Atlantic Ltd. v. United States, 26 Cl.Ct. 575, 579 (1992) (“Just as in a permanent taking claim, plaintiff must show that substantially all economic use of its property was denied during the time in question.”). Second, they look to whether the government is responsible for “extraordinary delay” in the regulatory process. See, e.g., Tabb Lakes Inc. v. United States, 26 Cl.Ct. 1334, 1352-54 (1992), aff'd, 10 F.3d 796 (Fed.Cir.1993); Dufau v. United States, 22 Cl.Ct. 156, 163 (1990), aff'd, 940 F.2d 677, 1991 WL 130314 (Fed.Cir.1991). See also Norman v. United States, 38 Fed.Cl. 417, 427 (1997) (summarizing cases). As the Supreme Court has explained, “[m]ere fluctuations in value during the process of governmental decision-making, absent extraordinary delay, are ‘incidents of ownership. They cannot be considered as a “taking” in the constitutional sense.’ ” Agins v. City of Tiburon, 447 U.S. 255, 263 n." }, { "docid": "21525906", "title": "", "text": "the [United States Court of Federal Claims].” Frank’s Livestock & Poultry Farm, Inc. v. United States, 17 Cl.Ct. 601, 607 (1989), aff'd, 905 F.2d 1515 (Fed.Cir.1990). Thus, because the Fourth Amendment does not mandate the pajmient of money for its violation, jurisdiction over claims, such as plaintiffs taking claim, does not lie in this court. Murray v. United States, 817 F.2d 1580, 1582-83 (Fed. Cir.1987); see also Earnest v. United States, 33 Fed.Cl. 341, 344 (1995). The court does, however, have jurisdiction over Fifth Amendment taking claims that result from authorized acts of government officials. Considering plaintiffs complaint as presenting a Fifth Amendment taking case, the court still lacks jurisdiction. “[W]here, as in this case, a taxpayer disputes an IRS levy on his property, the appropriate course of action is a direct challenge of the levy, not the prosecution of a fifth amendment claim.” Castillo Morales v. United States, 19 Cl.Ct. 342, 345 (1990); cf. First Atlas Funding Corp. v. United States, 23 Cl.Ct. 137, 139-41 (1991) (holding that the mere filing by the IRS of a federal tax lien does not constitute a Fifth Amendment taking)» affd without op., 954 F.2d 733,1992 WL 4242 (Fed.Cir.1992). Furthermore, if, as plaintiff argues, the IRS acted improperly in assessing income taxes and penalties against him, no taking could have occurred. A taking can only result from authorized acts of government officials. Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802-03 (Fed.Cir. 1993); Earnest, 33 Fed.Cl. at 344. By contrast, claims that are based on unauthorized acts of government officials sound in tort. Earnest, 33 Fed.Cl. at 344. As stated previously, the court lacks jurisdiction over tort claims. Garrett, 15 Cl.Ct. at 208. Due to the ambiguity of the plaintiffs constitutional claims, those claims also are considered in the context of the due process clause of the Fifth Amendment. “It is well established that the due process clause of the Fifth Amendment ... does not mandate the payment of money by the United States.” Golder v. United States, 15 Cl.Ct. 513, 517 (1988). Thus, claims based on that clause are beyond the" }, { "docid": "6954843", "title": "", "text": "dismiss for lack of subject matter jurisdiction should be granted with regard to plaintiffs allegations that the government acted negligently and/or breached a duty to plaintiff. The plaintiff also argues that the defendant “took” the plaintiffs “right to sue” her employer in federal court. Plaintiff argues that the actions of the EEOC and the DOJ were fraudulent. Plaintiff’s “answer” to the defendant’s motion to dismiss “insists that the circumstances dealing with this Complaint has frudulent [sic] action by the Defendants____” Furthermore, plaintiffs “answer” alleges that “[t]he Defendants gave the Plaintiff a fraudulent contract, the right to [sue] letter was a fraud.” The court notes that these claims also are based upon allegations of misconduct by government officials. In Earnest v. United States, this court dismissed claims against the government based upon allegations of misconduct by government officials, which a plaintiff alleged resulted in a taking. The court stated: Moreover, if, as plaintiff argues, the [government agency] ... acted improperly, then no taking can have occurred, for takings result only from authorized acts of government officials. Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802-03 (Fed. Cir.1993); Florida Rock Indus, v. United States, 791 F.2d 893, 898-99 (Fed.Cir. 1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987). Claims based on unauthorized acts (wrongdoing) by government officials sound in tort. Smithson v. United States, 847 F.2d 791, 794 (Fed. Cir.1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989). Earnest v. United States, 33 Fed. Cl. 341, 344 (1995). Therefore, this court has no jurisdiction over plaintiffs allegations that the government “took” her right to sue or acted fraudulently. Because these claims also sound in tort, any such claims must be dismissed. Count II of the plaintiffs complaint alleges that the actions of the defendant have violated her civil rights, and that she was discriminated against due to her medical condition and because she filed complaints alleging misconduct. She also claims that she was not provided due process in violation of the Fifth and Fourteenth Amendments to the United States Constitution because, according to" }, { "docid": "6497525", "title": "", "text": "404 jurisdiction. Federal courts have identified three factors important in the determination of whether there has been a deprivation of the economically viable use of land involved in regulatory taking suits: [1] the character of the government action; [2] the economic impact of the regulation on plaintiffs; and [3] the extent to which the regulation has interfered with plaintiffs’ reasonable investment-backed expectations. See Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224-25, 106 S.Ct. 1018, 1025-26, 89 L.Ed.2d 166 (1986); Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 901 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); Loveladies Harbor, supra, 21 Cl.Ct. at 155. A. Plaintiffs’ Permanent Taking Claim Plaintiffs argue they have been permanently deprived of economically viable use of 42 acres of their land, which they claim the Corps refuses to specifically identify as nonwetlands because the nonwetlands acres are intermingled with the wetlands acres. Plaintiffs do not explain how they have been permanently deprived of these acres since plaintiffs received their § 404 permits, which allow plaintiffs to fill, develop and sell all 112 acres of their land. In Riverside Bayview Homes, supra, the Supreme Court upheld the Corps’ regulation of freshwater wetlands under its § 404 jurisdiction. The Court noted that the Corps’ requirement of a § 404 permit before filling wetlands does not “take” property in any sense. “Only when a permit is denied and the effect of the denial is to prevent ‘economically viable’ use of the land in question can it be said that a taking has occurred.” Riverside Bayview Homes, supra, 474 U.S. at 127, 106 S.Ct. at 459. In the present case, the Corps issued to plaintiffs in 1986 a § 404 permit to fill 57 acres of their property designated by the Corps as wetlands. In 1987, plaintiffs received a second § 404 permit to fill the remaining 13 acres of wetlands they had set aside as mitigation for filling the 57 acres. As defendant points out, it is only when a permit has been denied and the effect of the denial" }, { "docid": "19956786", "title": "", "text": "15 Cl.Ct. 212, 215-16 (1988). An assertion that the Government’s action is unlawful is insufficient to allege a taking that vests jurisdiction in this court because “[cjhallenges to the propriety of government action sound in tort.” Montego Bay Imports, Ltd. v. United States, 10 Cl.Ct. 806, 809 (1986); Shaw, 8 Cl.Ct. at 799. The Court of Federal Claims has no jurisdiction over actions that sound in tort. 28 U.S.C. § 1491 (1988); see Florida Rock, 791 F.2d at 898 (“A Tucker Act suit in the [Court of Federal Claims] is not ... available to recover damages for unauthorized acts of government officials.”). Here, plaintiffs contend that they are entitled to an award of damages due to the unlawful conduct of the Government. Specifically, they allege that the Government deliberately destroyed the STAR TREK in order to avoid bringing it into port for subjection to forfeiture proceedings, in an effort to save the general public the costs which would otherwise have been expended in bringing the ship to custody. Congress, however, has provided that the only lawful grounds by which the Coast Guard may destroy a vessel at sea is when the vessel constitutes a floating danger to navigation. 14 U.S.C. § 88(a)(4). The statute, therefore, does not, as plaintiffs point out, authorize the Coast Guard to destroy vessels in order to save money and time associated with submitting the property to forfeiture proceedings. Furthermore, plaintiffs argue that the purposeful destruction of seized property to avoid forfeiture proceedings violates 21 U.S.C. § 881 (Supp.1992), which regulates forfeiture of vessels due to the presence of controlled substances, as was the case with the STAR TREK. B & F Trawlers, 841 F.2d at 627-28. Section 881(d) specifies that the provisions relating to seizure, forfeiture, and condemnation of property in violation of customs laws also apply to seizures and forfeitures pursuant to § 881. 21 U.S.C. § 881(d). Accordingly, the Coast Guard was required to adhere to the requirements specified at 19 U.S.C. §§ 1602-1619 (Supp.1992), which mandate a complete procedure for the disposition of seized property through forfeiture proceedings. 19 U.S.C. § 1600." }, { "docid": "9511871", "title": "", "text": "is that the DEA should have transmitted the forfeiture proceedings to the United States Attorney for appropriate action in a federal district court. Thus, plaintiffs argument is that the DEA acted contrary to law by forfeiting the property. To state a takings claim in this court, however, the plaintiff must concede the lawfulness of the actions of the Government that resulted in the alleged “taking.” Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 898 (Fed.Cir.1986) cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); Eversleigh, 24 Cl.Ct. at 359; Torres, 15 Cl.Ct. at 215-16. The allegation must not be that the Government’s conduct in and of itself violated law, but that the effect of a valid exercise of sovereign authority resulted in the taking of private property for public use, but without payment. Here, the plaintiff has alleged in her complaint that the DEA acted outside its legitimate authority by forfeiting the property in violation of agency regulations. This allegation puts the claim outside a taking context. To concede the validity of the forfeiture in this case would concede the merits of the claim as well. This court is aware of the decision in Frou-di v. United States, 22 Cl.Ct. 290 (1991), and respectfully disagrees with it. In Froudi, the court held, under similar circumstances, that the Claims Court would retain jurisdiction and stay proceedings over a claim for a compensable taking, while the district court determined the validity of the forfeiture in question. Although the plaintiffs claim included the assertion that he was not given adequate notice prior to forfeiture, id. at 293, the court relied on the validity of the agents’ actions in making the initial seizure and upon the general authority given by the forfeiture statute itself. This focus yielded a finding that there was no challenge by the plaintiff as to the DEA’s authority to act. The view of this court, however, is that the appropriate focus is whether the DEA and its agents were authorized to administratively forfeit this particular property, not simply whether there was valid authority to make" }, { "docid": "5821200", "title": "", "text": "to complete its own levee and, as a consequence, of all economically viable use of their private properly---- Plf. Mot. Summ. J. at 30 (emphasis added). . In a takings claim, the plaintiff must concede the validity of the government action that is the subject of his claim. This is a jurisdictional requirement, and stems from the fact that the takings clause of the Fifth Amendment does not empower the court to award just compensation for the unauthorized acts of government officials. Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 898 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed.Cir.1993) (If \"the taking is unauthorized, the acts of defendant’s officers may be enjoinable, but they do not constitute taking effective to vest some kind of title in the government and entitlement to just compensation in the owner or prior owner.”) (quoting Armijo v. United States, 663 F.2d 90, 95, 229 Ct.Cl. 34, 40 (1981)). That is, the takings clause does not empower the government to act beyond its authority so long as it pays compensation for doing so. . Where the properly owner is challenging a state or local law, ripeness doctrine requires that he not only secure a final determination, but that he also seek just compensation in state court before bringing his claim in federal court. See Suitum, 520 U.S. at-, 117 S.Ct. at 1665 (\"if a State provides an adequate procedure for seeking just compensation, the properly owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and has been denied just compensation”) (quoting Williamson, 473 U.S. at 195, 105 S.Ct. at 3121). This second requirement is not implicated by a challenge to federal law. See generally Gregory M. Stein, Regulatory Takings and Ripeness in the Federal Courts, 48 Vand. L.Rev. 1 (1995). . The Federal Circuit held that 28 U.S.C. § 1500 (\"The United States Court of Federal Claims shall not have jurisdiction of any claims for or in respect to which the" }, { "docid": "19956785", "title": "", "text": "(1990). The standard for dismissal mandates that the court may not dismiss a complaint “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957), quoted in Kinne v. United States, 21 Cl.Ct. 104, 107 (1990). I. Allegations Which Sound in Tort Fall Outside the Court’s Jurisdiction. The Court of Claims, this court’s predecessor, concluded in Armijo v. United States, 229 Ct.Cl. 34, 663 F.2d 90 (1981), a regulatory takings case, that “[i]n such cases the characteristic feature is the defendant’s use of rightful property, contract, or regulatory rights to control and prevent exercise of ownership rights the defendant is unwilling to purchase and pay for.” 229 Ct.Cl. at 37, 663 F.2d at 93 (emphasis added), quoted in Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 899 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); Torres v. United States, 15 Cl.Ct. 212, 215-16 (1988). An assertion that the Government’s action is unlawful is insufficient to allege a taking that vests jurisdiction in this court because “[cjhallenges to the propriety of government action sound in tort.” Montego Bay Imports, Ltd. v. United States, 10 Cl.Ct. 806, 809 (1986); Shaw, 8 Cl.Ct. at 799. The Court of Federal Claims has no jurisdiction over actions that sound in tort. 28 U.S.C. § 1491 (1988); see Florida Rock, 791 F.2d at 898 (“A Tucker Act suit in the [Court of Federal Claims] is not ... available to recover damages for unauthorized acts of government officials.”). Here, plaintiffs contend that they are entitled to an award of damages due to the unlawful conduct of the Government. Specifically, they allege that the Government deliberately destroyed the STAR TREK in order to avoid bringing it into port for subjection to forfeiture proceedings, in an effort to save the general public the costs which would otherwise have been expended in bringing the ship to custody. Congress, however, has provided that the only" }, { "docid": "5821199", "title": "", "text": "21, 1979 was such a final denial, plaintiffs takings claim accrued on that date. As plaintiffs’ February 21, 1995 complaint in this matter was filed more than six years after that denial, their takings claim is barred by the statute of limitations. Accordingly, it is ORDERED that defendant’s motion for summary judgment is GRANTED. Plaintiffs’ motion for summary judgment is DENIED. Final judgment shall be entered dismissing the complaint with no costs to be assessed. . The takings clause of the Fifth Amendment to the U.S. Constitution provides \"[n]or shall private property be taken for public use without just compensation.” U.S. Const, amend. V. . While the government might have chosen to locate its own levee along the advantageous alignment after the 1979 denial, plaintiffs admit that they had no compensable property interest in a government flood control levee: Cristina had no need for, desire for, or expectancy in a government-provided flood protection levee, and Cristina does not claim it was deprived of any such expectancy. Rather, Cristina claims BDF was deprived of the ability to complete its own levee and, as a consequence, of all economically viable use of their private properly---- Plf. Mot. Summ. J. at 30 (emphasis added). . In a takings claim, the plaintiff must concede the validity of the government action that is the subject of his claim. This is a jurisdictional requirement, and stems from the fact that the takings clause of the Fifth Amendment does not empower the court to award just compensation for the unauthorized acts of government officials. Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 898 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed.Cir.1993) (If \"the taking is unauthorized, the acts of defendant’s officers may be enjoinable, but they do not constitute taking effective to vest some kind of title in the government and entitlement to just compensation in the owner or prior owner.”) (quoting Armijo v. United States, 663 F.2d 90, 95, 229 Ct.Cl. 34, 40 (1981)). That is, the takings" }, { "docid": "21296380", "title": "", "text": "PLAGER, Circuit Judge. This is a regulatory taking case. It arose when the plaintiff Florida Rock Industries Inc. (Florida Rock) sought a permit under § 404 of the Clean Water Act from the Army Corps of Engineers (Corps) to mine the limestone which lay beneath a tract of wetlands. The Corps denied the permit on October 5, 1980. On May 25, 1982, Florida Rock filed suit in the United States Court of Federal Claims, seeking monetary compensation from the defendant United States (Government); Florida Rock alleged that the Corps’ permit denial constituted an uncompensated taking of private property for public use in violation of the Fifth Amendment. The Court of Federal Claims agreed, Florida Rock Indus., Inc. v. United States, 8 Cl.Ct. 160 (1985) (Florida Rock I), and awarded Florida Rock $1,029,000 plus attorney fees and simple interest. On appeal, this court vacated the judgment that a taking had occurred and remanded for further consideration. Florida Rock Indus., Inc. v. United States, 791 F.2d 893 (Fed.Cir.1986), cert. denied 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987) (Florida Rock II). On remand, the Court of Federal Claims found that the permit denial deprived Florida Rock of all value in its land, and so again concluded that there had been a taking and reinstated the $1,029,000 damages award, this time with compound interest. Florida Rock Indus., Inc. v. United States, 21 Cl.Ct. 161 (1990) (Florida Rock III). The Government appeals both the damages award and the choice of compound rather than simple interest. We again find it necessary to vacate the judgment that there has been a taking, and remand for further consideration consistent with this opinion. BACKGROUND The detailed background of the case is described in the several opinions referred to above as Florida Rock 7-/27. We provide here only a brief overview before proceeding to the heart of the matter: whether the Corps’ denial of the § 404 permit effected a regulatory taking, thus requiring the Government to pay just compensation. The answer to that question depends on the impact the regulatory imposition had on the economic use," }, { "docid": "1848077", "title": "", "text": "on the claimant;” (2) “the extent to which the regulation has interfered with- distinct investment-backed expectations;” and (3) “the character of the governmental action.” Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). See also Florida Rock, 18 F.3d at 1564. In assessing the first factor relevant to whether a regulatory taking has occurred, the economic impact of the regulation, the focus is on the relationship between the value of the property interest that was allegedly taken and the value of the property owner’s interest in the “parcel as a whole.” Penn Central, 438 U.S.- at 130-31, 98 S.Ct. 2646; see also Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). This comparison measures the change in the fair market value of the property caused by the regulatory imposition. Florida Rock, 18 F.3d at 1567. In addition, in assessing the severity of the economic impact of the regulations, “the owner’s opportunity to recoup its investment or better, subject to the regulation, cannot be ignored,” thereby requiring the court to compare “the relationship of the owner’s basis or investment” in the property before the alleged taking to the fair market value of the property after the alleged taking. Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 905 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987). In this case, there are genuine issues of material fact concerning the value of the property allegedly taken, as well as the value of the property remaining, that preclude the court from granting summary judgment for either party. For example, defendant disputes plaintiffs’ contention that they have been deprived of all economically viable use of their property, contesting, particularly, plaintiffs’ claim that the parcel of property for which the Corps provided a permit does not represent an economically viable development. Moreover, the valuations assigned by the various parties to the “parcel as a whole” — the figure used in the denominator of the equation described in Penn Central— vary dramatically, almost" }, { "docid": "21536064", "title": "", "text": "1631. C. Taking Claim Plaintiff asserts that by forfeiting his property in violation of the Double Jeopardy Clause, the Government took his property without providing the just compensation mandated by the Fifth Amendment. Defendant’s initial counter-argument in this context is based on the premise that takings relief is foreclosed due to Plaintiffs allegations that the Government action which resulted in the taking was void. It is asserted that in order for a valid claim to arise, the Government must have possessed the authority to carry out the act resulting in the alleged taking. See Tabb Lakes v. United States, 10 F.3d 796, 802-03 (Fed.Cir.1993); Florida Rock, 791 F.2d at 899; Deltona Corp. v. United States, 657 F.2d 1184, 228 Ct.Cl. 476 (1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1982). Defendant relies upon Court of Federal Claims cases which found that relief was precluded based on an absence of governmental authority to act. See Eversleigh v. United States, 24 Cl.Ct. 357, 359 (1991) (no takings jurisdiction as forfeiture alleged invalid for due process violations with relation to seizure); Golder v. United States, 15 Cl.Ct. 513, 518 (1988) (administrative forfeiture alleged to be unauthorized due to lack of probable cause); Noel, 16 Cl.Ct. at 170 (improper forfeiture cannot give rise to a taking when Drug Enforcement Administration officials acted outside scope of authority). The eases setting forth the rule Defendant employs involve takings alleged to have arisen when agencies acted outside the scope of their authority in denying land use permits. See e.g., Florida Rock, 791 F.2d at 898-99. In Florida Rock a foundational jurisdictional condition — that pollution existed — had to have been met in order for an agency to acquire statutory authority to invoke its permit regulations. Id. The court explained that a taking resulting from a permit denial would only occur if the agency had acted within its authority in issuing the permit denial in the first place. Id. In contrast, the taking claim alleged in this case stems from forfeiture judgments entered by a district court. The court was authorized to enter" }, { "docid": "18174545", "title": "", "text": "claim is not the leases. What is the subject property is UNO’s expectation that it would be permitted by defendant to engage in mining the leased tracts. According to Allied-General [Nuclear Services, Inc. v. United States, 839 F.2d 1572 (Fed.Cir.1988)], this is not a legally protected property right which can be the subject of a Fifth Amendment taking. Id. 17 Cl.Ct. at 775. The court concluded that United had no legally protected property right to approval of its mining plan as against the declaration of policy to assure maximum participation by Indians in their affairs where the federal Government is involved. 17 Cl.Ct. at 777. II The determination whether government action constitutes a taking of property under the fifth amendment rather than a mere exercise of the government’s regulatory authority frequently is a close, difficult, and complex process. In Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986), the Supreme Court noted that while its cases “have eschewed the development of any set formula for identifying a ‘taking’ forbidden by the Fifth Amendment, and have relied instead on ad hoc, factual inquiries into the circumstances of each particular case,” there are “three factors which have ‘particular significance’ ” “[t]o aid in this determination”: (1) “the economic impact of the regulation on the claimant”; (2) “the extent to which the regulation has interfered with distinct investment-backed expectations”; and (3) “the character of the governmental action.” Id. at 224-25, 106 S.Ct. at 1025-26. See also Atlas Corp. v. United States, 895 F.2d 745, 756-57 (Fed.Cir.1990); United States v. One (1) 1979 Cadillac Coupe de Ville, 833 F.2d 994, 1000 (Fed.Cir.1987). 1. The Economic Impact of the Regulation on the Claimant. As the Claims Court found, the economic impact of the regulation (giving the Tribe a veto power over the mining plan) upon United “has been severe.” 17 Cl.Ct. at 773. United has paid the Tribe approximately $300,000 as a bonus for the leases and as rent and minimum royalties. It also expended more than $5 million in exploration and related activity. It is unlikely that" } ]

[ { "docid": "12090820", "title": "", "text": "LEVIN H. CAMPBELL, Chief Judge. The HMS DEFIANCE is believed to have foundered off the coast of Puerto Rico in 1652. In 1986-87, two groups of salvors, the Fitzgerald group and the Hauck group, allegedly discovered the wreck of what some believe to be the DEFIANCE several hundred yards off the beach near Rincon, Puerto Rico. The salvors recovered valuable artifacts, including an astrolabe. On December 28, 1987, the Fitzgerald group filed this admiralty action in rem in the United States District Court for the District of Puerto Rico. On February 10, 1988, the Hauck group filed an intervening complaint. Each group claimed exclusive title and possession to the wreck and its artifacts and sought a judicial determination in its favor against all claimants and all the world. The Commonwealth of Puer-to Rico and the Commonwealth’s Institute of Culture intervened specially and moved the district court to dismiss the in rem action, arguing that the action was barred by the Eleventh Amendment since it would necessarily require adjudication of the Commonwealth’s rival claims to the wreck and its artifacts. The district court granted this motion. Both the Fitzgerald group and the Hauck group appeal from this decision. The district court ruled that this case is indistinguishable from Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6 (1st Cir.1983). We agree with the district court and affirm its dismissal of the in rem action brought by the original and intervening plaintiffs. We think it apparent that the instant proceeding is necessarily directed against the Commonwealth of Puerto Rico. If the in rem action is to accomplish its purpose, which is to determine ownership of the wreck and artifacts, the federal district court must resolve the Commonwealth’s claim of ownership, and would do so without the latter’s consent. In support of this, we point out the following: 1) The wreck is located within the Commonwealth’s territorial waters. 2) The Commonwealth has claimed, and has been litigating in its local courts, so far successfully, the ownership of the wreck and the salvaged items. Thus, well before plaintiffs commenced" } ]

[ { "docid": "1716417", "title": "", "text": "6 (1st Cir.1983); Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F.Supp. 1377 (S.D.Fla.1988); Subaqueous Exploration v. Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597 (D.Md.1983). See also Marx v. Government of Guam, 866 F.2d 294 (9th Cir.1989). However, as these courts have implicitly recognized, if a particular state would have no colorable claim of title, then the lawsuit cannot legitimately be treated as an action against that state. In other words, for a state to show that it is a defendant and thus is entitled to assert sovereign immunity, the state must show that it has a colorable claim of ownership. See Owen, Legal Troubles, at 154. Thus, much as in the Treasure Salvors type of situation, where the court must ask whether the conduct of the state officials in asserting possession or ownership is legitimate, a court faced with a motion by a state to dismiss an in rem action on the basis of sovereign immunity must inquire whether the state’s claim of ownership is colorable. The first two Treasure Salvors questions are thus collapsed. If the state’s claim is colorable, the lawsuit is against the state; if the state’s claim is not colorable, the lawsuit is not against the state. 2. Colorable Claim a. State Statutes In support of its claim of ownership over the shipwrecks, the State first relies on a number of Illinois statutes. In other cases, state statutes have been held to create a colorable claim of ownership by the state. Thus in Treasure Salvors, the state relied on Fla.Stat. § 267.061(l)(b), which provided: It is further declared to be the public policy of the state that all treasure trove, artifacts and such objects having intrinsic or historical and archeological value which have been abandoned on state-owned lands or state-owned sovereignty submerged lands shall belong to the state with the title thereto vested in the division of archives, history, and records management of the department of state for the purpose of administration and protection. 458 U.S. at 673-74, 102 S.Ct. at 3309. In Subaqueous, supra, the state’s claim was based in" }, { "docid": "16115488", "title": "", "text": "hold, however, that the district judge erred in adjudicating the rights of the state itself. Id. at 699-700, 102 S.Ct. at 3322. The four justices who thought Edelman and Young insufficient to authorize the warrant necessarily concluded that the court could not resolve the claims of the state. So eight justices were of opinion that a district court may not, in an admiralty in rem action, decide whether a state owns a wreck and its artifacts. Treasure Salvors did not overrule New York (I) and New York (II), which preclude an injunction of the kind the district court issued. Although Treasure Salvors shows that some members of the Court believe that it is appropriate to grant relief affecting public officials who hold salvaged artifacts under feeble legal claims, it creates no opening for relief against a state in its own name. The strength of the state’s legal position is irrelevant; the eleventh amendment prevents the district judge from exercising jurisdiction. Accord, Maritime Underwater Surveys, Inc. v. Abandoned Sailing Vessel (The Whidah), 717 F.2d 6, 8 (1st Cir.1983); Fitzgerald v. Abandoned Vessel (HMS Defiance), 866 F.2d 16, 18 (1st Cir.1989). To know whether a general all-the-world injunction runs against a state, the court must determine whether the state has some interest. Michigan has no conceivable interest in the remains of the Lady Elgin, so an all-claimants injunction could not be thought to invade Michigan’s privileges in violation of the eleventh amendment. In this sense, some view of the merits is inevitable. Marx v. Guam, 866 F.2d 294, 299-300 (9th Cir.1989), on which Zych relies, establishes no more than this. We hold that it is the existence, and not the strength, of the claim that activates the eleventh amendment. No one doubts that Illinois has a claim, which is the principal target of the district judge’s injunction. To the extent Sindia Expedition, Inc. v. The Sindia, 895 F.2d 116, 119-20 (3d Cir.1990), holds that an in rem action is never against the state, the court misunderstands Treasure Salvors, and we respectfully disagree with its holding. Ill One final subject detains us only" }, { "docid": "1716462", "title": "", "text": "improvements, and natural resources.... . Plaintiff does not expressly state that the shipwreck is located within the State’s boundaries. However, the complaint does assert that the shipwreck is located “within the territorial jurisdiction of this Court.\" Plaintiff also has not responded to the State’s assertion that it is undisputed that the shipwreck lies within the State’s boundaries. . It might be contended that the common law of salvage applies rather than the law of finds. Pursuant to the law of salvage, the provision of salvage services to an imperiled vessel gives rise to a maritime lien. In order for the law of salvage to apply even when a vessel is abandoned, it is presumed that the property has not been divested of title. The property is sold by the court, and the salvor receives a portion of the proceeds as compensation. See Chance, 606 F.Supp. at 804. The prevailing view is that in the context of historic, abandoned shipwrecks, the law of finds applies rather than the law of salvage. See Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987); Jupiter Wreck, 691 F.Supp. at 1385; Chance, 606 F.Supp. at 804; Subaqueous, 577 F.Supp. at 611. A salvage award provides an incentive to salvors and thus helps to protect the owner of the property against the loss of that property. See Jupiter Wreck, 691 F.Supp. at 1388. To apply the law of salvage, however, by creating the fiction of continuing ownership even after the property has long been abandoned is rather absurd, especially when the law of finds provides a rational method for determining rights in the property. See Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978); Jupiter Wreck, 691 F.Supp. at 1385. In any event, it appears that application of the law of salvage would often lead to the same result. Under the law of salvage, the owner of the vessel may reject the salvage services, in which event the salvor is not entitled to an award. See Platoro, 695 F.2d at" }, { "docid": "21584197", "title": "", "text": "cites Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 339 (5th Cir.1978), as support for the proposition that the Submerged Lands Act does not cover shipwrecks, and, therefore, Guam does not have a colorable claim to the wrecks. This characterization of Abandoned Sailing Vessel is inaccurate. The case involved interpretation of the United States’ rights under the Continental Shelf Act rather than interpretation of the Submerged Lands Act. 569 F.2d at 339-40. Marx also cites the Cobb Coin cases. Cobb Coin Co. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186, 189-90 (S.D.Fla.1981) (Cobb Coin I) and Cobb Coin Co. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 555 n. 14 (S.D.Fla.1982) (Cobb Coin II). In the Cobb Coin cases, Judge King made a frontal attack on the State of Florida’s attempt to control the exploration and recovery of historical shipwrecks off the state’s coast. The most striking part of the Cobb Coin decisions is Judge King’s conclusion that the Florida Act was invalid. One of Judge King’s colleagues in the Southern District of Florida, however, has rejected the Cobb Coin cases. Jupiter Wreck, 691 F.Supp. at 1389. And other courts which have considered the question have ruled that similar submerged lands acts do give states at least a colorable claim to wrecks within their boundaries. See, e.g., Maritime Underwater Surveys, 717 F.2d 6, 7-8; Subaqueous, 577 F.Supp. 597. The First Circuit in Maritime Underwater Surveys held that Massachusetts had a colorable claim sufficient to deny the district court jurisdiction over a shipwreck one-quarter mile off its shore where its claim was based upon a Massachusetts statute asserting title over underwater archeological resources, and upon 43 U.S.C. § 1311 of the Submerged Lands Act. The court indicated that Massachusetts’ claim to the shipwreck was “at least colorable.” Maritime Underwater Surveys, 717 F.2d at 7-8. The Maritime Underwater Surveys case is directly on point. Guam’s Underwater Historic Property Act is similar to the Massachusetts statute in Maritime Underwater Surveys. See Guam Gov’t Code §§ 13985.29-35 (Supp.1974). And the federal statute" }, { "docid": "1716463", "title": "", "text": "Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987); Jupiter Wreck, 691 F.Supp. at 1385; Chance, 606 F.Supp. at 804; Subaqueous, 577 F.Supp. at 611. A salvage award provides an incentive to salvors and thus helps to protect the owner of the property against the loss of that property. See Jupiter Wreck, 691 F.Supp. at 1388. To apply the law of salvage, however, by creating the fiction of continuing ownership even after the property has long been abandoned is rather absurd, especially when the law of finds provides a rational method for determining rights in the property. See Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978); Jupiter Wreck, 691 F.Supp. at 1385. In any event, it appears that application of the law of salvage would often lead to the same result. Under the law of salvage, the owner of the vessel may reject the salvage services, in which event the salvor is not entitled to an award. See Platoro, 695 F.2d at 901-02. In enacting § 2106, Congress specifically rejected salvage services on the vessels subject to the ASA. Furthermore, it is reasonable to interpret state preservation statutes which limit the ability of divers and salvors to explore or excavate abandoned shipwrecks as expressing a rejection of salvage services. . Section 2105(b) provides: The public shall be given adequate notice of the location of any shipwreck to which title is asserted under this section. The Secretary of the Interior, after consultation with the appropriate State Historic Preservation Officer, shall make a written determination that an abandoned shipwreck meets the criteria for eligibility for inclusion in the National Register of Historic Places under clause (a)(3). (Emphasis added.) It might be argued that the ASA does not apply to a given shipwreck if the United States or the applicable state has not \"asserted” title to the wreck nor given any public notice of its location. Plaintiff, however, does not raise this issue and the Court thus does not reach it. . No congressional enactment has yet been struck down" }, { "docid": "9781082", "title": "", "text": "owned and had responsibility for managing historic wrecks. The House Report noted the existing confusion: over the ownership and authority to manage abandoned shipwrecks. States have claimed title to, and regulatory authority over, abandoned historic shipwrecks located on submerged lands under their jurisdiction. The Federal Admiralty Courts have also claimed jurisdiction over the salvage of these resources. H.R.Rep. No. 100-514(1), 100th Cong., 2d Sess., reprinted in 1988 U.S.Code Cong. & Admin.News 365, 366 [hereinafter House Report]. While 28 states had passed legislation relating to the management of historic shipwrecks at the time the ASA was being considered, they had achieved only limited success in enforcing their laws. Id. at 366. Some federal courts had held that cases involving shipwrecks were within their exclusive admiralty jurisdiction and applied either the law of finds or the law of salvage to adjudicate the disputes before them. See, e.g., Platoro, Ltd. Inc. v. Unidentified Remains of a Vessel, 614 F.2d 1051 (5th Cir.), certiorari denied, 449 U.S. 901, 101 S.Ct. 272, 66 L.Ed.2d 131 (1980); Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir.1978); Martha’s Vineyard Scuba Headquarters, Inc. ¶. Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059 (1st Cir.1987). Courts also had specifically held that any applicable state regulation was pre-empted by admiralty principles. See, e.g., Cobb Coin Co. v. Unidentified, Wrecked & Aban doned Sailing Vessel, 525 F.Supp. 186 (S.D.Fla.1981), contra, Subaqueous Exploration & Archaeology, Ltd. v. Unidentified, Wrecked & Abandoned Vessel, 577 F.Supp. 597 (D.Md.1983), affirmed without opinion, 765 F.2d 139 (4th Cir.1985). Senator Bill Bradley, sponsor of the Senate bill, expressed a concern that “[u]nder the current system, Federal courts — sitting in admiralty — have substantial policymaking power, which has resulted in uneven judgments about the historical value of shipwrecks.” 113 Cong.Rec. S. 3988-3989 (March 26, 1987). Congress’ answer was to assert federal ownership of certain shipwrecks and simultaneously transfer title of those wrecks to the states for administration, management and regulation. In Section 6(a) of the ASA the United States claims title to all abandoned shipwrecks either embedded in the submerged" }, { "docid": "21584204", "title": "", "text": "Duty Free Shoppers, Ltd., 764 F.2d 1285, 1289 (9th Cir.1985) (holding that the government of Guam has federal antitrust immunity), cert. denied, 475 U.S. 1081, 106 S.Ct. 1457, 89 L.Ed.2d 715 (1986). . Compania Espanola v. Navemar, 303 U.S. 68, 58 S.Ct. 432, 82 L.Ed. 667 (1938), is not to the contrary. In Navemar, the sovereign, Spain, apparently did not have colorable title to the ship. 303 U.S. at 73, 58 S.Ct. at 434. We do not read Navemar as making possession an independent requirement. Furthermore, Navemar involved an active sailing vessel rather than a lifeless, centuries old wreck. Obviously, possession is more relevant when the ship’s crew can sail away then when its primary value may be found in having it left alone, preserved for posterity. See Klein v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1515 (11th Cir.1985) (government owner of sunken ship might prefer to leave wreck intact underwater). . The First Circuit in Maritime Underwater Surveys stated it had no doubt the state’s claim was \"at least colorable,” but the court did not reach that issue because the claim involved the State of Massachusetts, not a named state official as in Treasure Salvors, and “because of the Eleventh Amendment's flat prohibition of suits against states regardless of their merit.” Maritime Underwater Surveys, 717 F.2d at 8. . The court also discussed the eleventh amendment issue. However, the persuasive value of this discussion is limited. In the case of Cobb Coin I, the decision was rendered prior to Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982). Furthermore, the state had sought affirmative injunctive relief. 525 F.Supp. at 192, 196. In Cobb Coin II, Judge King determined that Florida, by seeking affirmative relief, had consented to the district court’s jurisdiction. 549 F.Supp. at 544, 555 n. 15. This finding of waiver made discussion of the eleventh amendment issue unnecessary. See Maritime Underwater Surveys, 717 F.2d at 8. . In Treasure Salvors, the full Supreme Court did not consider the validity of the Florida statute. However," }, { "docid": "2521870", "title": "", "text": "action in rem against a vessel owned by a State.” Welch, 107 S.Ct. at 2954. The in rem action here does not fit neatly within the constructs of these precedents. This action against the vessel is not an in personam action against the State disguised by the seizure of certain property. It is a legitimate salvage action commenced pursuant to established admiralty principles. Further, unlike Treasure Salvors, the res here is not in the hands of state officers. Moreover, this action was not brought against a vessel indisputably owned by Florida. We recognize only that Florida has asserted a colorable claim to title of the res and has not consented to suit in this forum. However, under Treasure Salvors, we cannot conclude that Florida does in fact own the res, and therefore the action itself is not barred; but we can only conclude that JWI cannot succeed on its claim to ownership or full possession because the ownership status of the State must remain unresolved. In a case strikingly similar to the one at bar the First Circuit Court of Appeals affirmed a decision of the District Court to dismiss an in rem admiralty action where a wreck was discovered one quarter mile off the coast of Massachusetts, and the salvor sought title, possession and a salvage award. The Commonwealth of Massachusetts filed a restricted appearance solely for the purpose of asserting an Eleventh Amendment defense. Relying on Treasure Salvors, and recognizing that Massachusetts was the Plaintiff’s “principal opponent,” although not a named defendant, see Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945), the First Circuit held “that when a state, asserts title to antiquities lodged within the seabed under its authority, the Eleventh Amendment bars federal adjudication of the state’s interest, absent its consent.” Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6, 8 (1st Cir.1983); see also Florida v. Treasure Salvors, Inc., 689 F.2d 1254, 1256 (5th Cir.1982) (Treasure Salvors III); Subaqueous Exploration & Archeology, Ltd. v. Unidentified, Wrecked and" }, { "docid": "5067709", "title": "", "text": "is considered the functional equivalent of the border and therefore affords an area of limited United States jurisdiction. As between the parties to this litigation, it is conceded that this Court has in person-am jurisdiction, by virtue of process duly served, to adjudicate the dispute between the parties as to all those objects from the wrecksite whose ownership is in issue. The Court has in personam jurisdiction of the parties to determine the validity of a contract between the parties and any rights conferred thereunder. Jurisdiction is also conferred based upon in personam principles to adjudicate and protect the rights of these parties on a continuing basis to complete the salvage of the wrecksite now before this Court. Finally, this Court has in rem jurisdiction, coupled with in personam jurisdiction, over the parties to dispose of all artifacts brought up from the site of this wreck during the pendency of the lawsuit. Cobb Coin Company, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, etc., 525 F.Supp. 186, 194-197 (S.Dist.Fla. 1981); Treasure Salvors, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, etc., 569 F.2d 330, 333-336 (5th Cir. 1978); Treasure Salvors v. The Unidentified, Wrecked and Abandoned Sailing Vessel, etc., 640 F.2d 560, 567-568 (5th Cir. 1981). An in rem action for a salvage award against artifacts recovered from the remains of a centuries-old shipwreck states a claim within this Court’s admiralty jurisdiction, governed by the judicial doctrine of finds and the principles of maritime salvage. Cobb Coin, 525 F.Supp. at 203 citing Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir.1978) (Treasure Salvors I); Cobb Coin, 549 F.Supp. at 548; Eads v. Brazelton, 22 Ark. 499 (1861); Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452 (E.Dist.Va.1960); Brady v. S.S. African Queen, 179 F.Supp. 321 (E.Dist. Va.1960); Nippon Shosen Kaisha, K.K. v. United States, 238 F.Supp. 55 (N.Dist.Cal. 1964); Rickard v. Pringle, 293 F.Supp. 981 (E.Dist.N.Y.1968); Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, etc., 569 F.2d 330 (1978); Volume IIIA, M. Norris, Benedict" }, { "docid": "2521871", "title": "", "text": "the First Circuit Court of Appeals affirmed a decision of the District Court to dismiss an in rem admiralty action where a wreck was discovered one quarter mile off the coast of Massachusetts, and the salvor sought title, possession and a salvage award. The Commonwealth of Massachusetts filed a restricted appearance solely for the purpose of asserting an Eleventh Amendment defense. Relying on Treasure Salvors, and recognizing that Massachusetts was the Plaintiff’s “principal opponent,” although not a named defendant, see Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945), the First Circuit held “that when a state, asserts title to antiquities lodged within the seabed under its authority, the Eleventh Amendment bars federal adjudication of the state’s interest, absent its consent.” Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6, 8 (1st Cir.1983); see also Florida v. Treasure Salvors, Inc., 689 F.2d 1254, 1256 (5th Cir.1982) (Treasure Salvors III); Subaqueous Exploration & Archeology, Ltd. v. Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597 (D.Md.1983); cf., Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 898-901 (5th Cir.) (waiver of Eleventh Amendment immunity), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); Riebe v. Unidentified, Wrecked and Abandoned 18th Century Shipwreck, 691 F.Supp. 923, 926 (E.D.N.C.1987); Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F.Supp. 801, 803-04 (S.D.Ga.1984) (waiver of Eleventh Amendment immunity), aff'd, 775 F.2d 302 (11th Cir.1985). 5. In light of this authority, JWI has challenged the basis on which the State has asserted title to the property. JWI contends that the law relied upon by the State is pre-empted by federal maritime law. Specifically, Plaintiff relies on Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186 (S.D.Fla.1981) (Cobb Coin I), for the proposition that “Florida’s licensing scheme and the criminal penalties imposed for noncompliance therewith conflict impermissibly with federal maritime principles____” Id. at 200. JWI’s invocation of the pre-emption doctrine must fail for two reasons. First, under controlling" }, { "docid": "9781103", "title": "", "text": "assumes no other basis for federal jurisdiction can be found. The parties are not alleged to be diverse. The ASA itself gives finders no cause of action or right to relief. . The elimination of the law of salvage as applied to embedded shipwrecks in particular would destroy a finder’s ability to bring a federal in rem admiralty action. In rem jurisdiction exists when a maritime lien arises. Fed.R.Civ.P. C(l) (Supplemental Rules of Certain Admiralty and Maritime Claims). It is the salvage claim that gives rise to a lien, for the salvage award is secured by the ship itself. Norris, 3A Benedict on Admiralty § 143 (1991). . The law of finds developed at common law but has come to be considered a maritime concept. S.ee Owen, The Abandoned Shipwreck Act of 1987: Goodbye to Salvage in the Territorial Sea, 19 J. of Mar.L. & Comm. 499, 510 (1988). Compare Subaqueous, 577 F.Supp. at 611 (referring to \"maritime law of finds”); Treasure Salvors, 569 F.2d at 336 (law of finds is adjunct to salvage law), with Jupiter Wreck, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 691 F.Supp. 1377, 1385 (S.D.Fla.1988) (\"resolution to a claim of ownership * * * of an historic shipwreck must be based on application of the common law of finds”); Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (\"The common law of finds generally assigns ownership of the abandoned property * * * ’’). Congress seems to have assumed that the law of finds was indeed an aspect of admiralty law. See, e.g., House Report at 366 (\"Aspects of admiralty law most applicable [to historic wrecks] are the ‘Law of Finds’ * * * 'and the Law of Salvage.’ ”). . Recently the Supreme Court has implied that the uniformity doctrine is only properly invoked to strike down state legislation when it purports to regulate commercial navigation, \"suits relating to the relationship of vessels, plying the high seas and our navigable waters, and to their crews.” Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36" }, { "docid": "1716421", "title": "", "text": "of the Lady Elgin and the Seabird, it does not purport to give the State an ownership interest in those remains. b. Common Law and the Submerged Lands Act The Submerged Lands Act, 43 U.S.C. § 1311, makes clear that the states have title to all lands and natural resources beneath navigable waters within the boundaries of the respective states. The State relies in part on this Act itself for its ownership claim, contending that the shipwrecks are “natural resources.” The Court is unwilling to engage in such a stretch of the meaning of “natural resource;” a shipwreck is not “natural.” Cf. Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel (“Cobb Coin I”), 525 F.Supp. 186, 214-16 (S.D.Fla.1981) (Act applies only to natural resources and does not give states authority to assert claims over shipwrecks); Commonwealth v. Maritime Underwater Surveys, Inc., 403 Mass. 501, 531 N.E.2d 549, 552-53 (1988) (Submerged Lands Act did not give state title to shipwrecks). The Act does, however, prove instrumental in giving the State a colorable ownership interest in the shipwrecks by making clear that the lake bed on which the shipwrecks lie belongs to the State. With ownership of the lake bed established, the common law of finds gives the State a colorable claim of ownership to the shipwrecks found on that lake bed. The law of finds generally provides that the first finder to take possession of lost or abandoned property with the intention to exercise control over it acquires title. See Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F.Supp. 1377, 1386 (S.D.Fla.1988); Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F.Supp. 801, 804 (S.D.Ga.1984), aff'd mem., 775 F.2d 302 (11th Cir.1985). An exception applies, however, to vest title in the owner of the land if the property is found embedded in the land. Klein, 758 F.2d at 1514; Jupiter Wreck, 691 F.Supp. at 1386; Chance, 606 F.Supp. at 805. Abandoned shipwrecks are generally considered to be “embedded” in the" }, { "docid": "9781107", "title": "", "text": "the State of Illinois have both assumed that Zych’s in rem suit would constitute a suit \"against the State\" for Eleventh Amendment purposes only if the state has a colorable claim to title of the shipwreck. The state asserted at oral argument, without citing authority and contrary to what it assumed on brief, that the colorability of its claim is irrelevant to the Eleventh Amendment analysis. It maintained that Zych’s in rem suit should be barred even if the state has no possible claim to title. The theory apparently is that it is sufficient that Zych asked that his claim be secured as against \"all the world,” the state of Illinois included. The state may brief this contention and present it to the district court on remand if it wishes. . If on remand the district court finds the suit against the state barred on Eleventh Amendment grounds, the court should enter judgment with respect to parties other than the state. While Rule 19(b) requires the dismissal of an action when an indispensable party cannot be joined, the state is not an indispensable party to this admiralty in rem action. See Treasure Salvors, 458 U.S. at 684, 102 S.Ct. at 3314 (judgment against others may stand though suit against state should have been dismissed as immune); Sindia Expedition, Inc. v. Wrecked and Abandoned Vessel, etc., 895 F.2d 116, 123 (3rd Cir.1990), contra Marx v. Government of Guam, 866 F.2d 294, 300 (9th Cir.1989); Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6, 8 (1st Cir.1983). The state’s rights will not be prejudiced so long as the federal court judgment explicitly declares that it is not adjudicating the state’s ownership rights. Florida Dept. of State v. Treasure Salvors, Inc., 689 F.2d 1254, 1256 (5th Cir.1982)." }, { "docid": "1716416", "title": "", "text": "resurfaces in another form when courts attempt to answer the first question— whether the suit is brought directly against the state. In rem suits to determine ownership of abandoned shipwrecks generally seek title against “all the world,” including “states.” Thus although they are not brought directly against states, they implicate states’ interests in the same way they implicate the interests of any other possible claimants. The minority position, in answer to the first Treasure Salvors question, is that such an in rem action simply is not a suit brought directly against the state. See Cobb Coin II, 549 F.Supp. at 551-52. Cf. Sindia Expedition, Inc. v. Wrecked and Abandoned Vessel, 895 F.2d 116 (3d Cir.1990). More often courts appear to have assumed that actions seeking to determine ownership against \"all the world” are, in effect, suits against states because states are included in the concept of “all the world.” See Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16 (1st Cir.1989); Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6 (1st Cir.1983); Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F.Supp. 1377 (S.D.Fla.1988); Subaqueous Exploration v. Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597 (D.Md.1983). See also Marx v. Government of Guam, 866 F.2d 294 (9th Cir.1989). However, as these courts have implicitly recognized, if a particular state would have no colorable claim of title, then the lawsuit cannot legitimately be treated as an action against that state. In other words, for a state to show that it is a defendant and thus is entitled to assert sovereign immunity, the state must show that it has a colorable claim of ownership. See Owen, Legal Troubles, at 154. Thus, much as in the Treasure Salvors type of situation, where the court must ask whether the conduct of the state officials in asserting possession or ownership is legitimate, a court faced with a motion by a state to dismiss an in rem action on the basis of sovereign immunity must inquire whether the state’s claim of ownership is colorable. The first two Treasure" }, { "docid": "21584192", "title": "", "text": "(Justices Stevens, Burger, Marshall and Blackmun) and the dissent (Justices White, Powell, Rehnquist and O’Connor) agreed that: the district court could not adjudicate Florida’s interest in artifacts from a wrecked vessel without Florida’s consent. Id. at 700, 102 S.Ct. at 3322 (plurality); id. at 703 n. * 102 S.Ct. at 3324 n. * (dissent). In Treasure Salvors the artifacts were in the possession of Florida state officials. The plurality viewed the action as one against only the state officials, not the State of Florida, and on that basis determined that there was federal jurisdiction to secure the release of the artifacts; the plurality noted that the state officials had “no colorable basis on which to retain possession of the artifacts.” Id. at 682, 102 S.Ct. at 3313. In our case, Guam did not have physical possession of any of the artifacts. Some of the artifacts had been recovered by Marx and deposited with the United States Marshal for the District of Guam, and some remain under Guam’s authority on or lodged in the sea bed. Neither the plurality nor the dissent in Treasure Sal-vors clearly indicated whether the Court would require a state asserting its sovereign immunity in an in rem action to have actual possession of the res. However, the Treasure Salvors dissent indicated that the absence of possession makes the state’s assertion of sovereign immunity as a jurisdictional bar more controversial. Treasure Salvors, 458 U.S. at 710 n. 7, 102 S.Ct. at 3327 n. 7 (citing Companía Espanola de Navegacion Maritima v. The Navemar, 303 U.S. 68, 75-76, 58 S.Ct. 432, 435-36, 82 L.Ed. 667 (1938)); see also Cobb Coin Co. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 550-52 (S.D.Fla.1982) (Cobb Coin II). In Jupiter Wreck, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F.Supp. 1377, 1384 (S.D.Fla.1988), the court concluded that posséssion was not essential to the application of the Treasure Salvors principles. We agree. See also Maritime Underwater Surveys, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6, 7-8 (1st Cir.1983); Subaqueous Exploration v. Unidentified, Wrecked and" }, { "docid": "1716445", "title": "", "text": "to jurisdiction, the State relies on the cases of Marx v. Government of Guam, 866 F.2d 294 (9th Cir.1989), and Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16 (1st Cir.1989). In each of those cases, the court held that a state which intervened in an in rem action for the limited purpose of moving to dismiss the action on the basis of sovereign immunity did not waive its sovereign immunity. Marx, 866 F.2d at 301; Fitzgerald, 866 F.2d at 17. See also Riebe v. Unidentified, Wrecked and Abandoned 18th Century Shipwreck, 691 F.Supp. 923, 926 (E.D.N.C.1987); Subaqueous Exploration v. Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597, 614 (D.Md.1983). Plaintiff argues that these cases should not be followed because they are inconsistent with the Treasure Salvors opinion. He argues that both Marx and Fitzgerald perpetuated an erroneous statement in Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6 (1st Cir.1983). The statement at issue is: “Because this is not a claim against a named state official, and because of the Eleventh Amendment’s flat prohibition of suits against states regardless of their merit, we need not reach the colorability of the Common- \\ wealth’s claim_” 717 F.2d at 8 (emphasis added). This Court does have concerns with the breadth of Maritime’s language. {See supra at n. 7.) However, regardless of the merit of this statement, it does not relate to the issue of consent and it certainly does not cast doubt on holdings in later cases addressing the consent issue. The precedents are unambiguous in holding that when a State’s involvement in an in rem action is limited to intervention for the sole purpose of disputing federal jurisdiction pursuant to the Eleventh Amendment, that involvement does not constitute a waiver of sovereign immunity. This Court finds this principle sensible; the State must have a way to protect its interests without waiving those very interests. The Court is thus unwilling to depart from the prior cases. Accordingly, the Court rejects plaintiff’s argument that the State has consented to the adjudication of its ownership interests by" }, { "docid": "8076748", "title": "", "text": "all of which involved the salvage of Spanish treasure ships sunk off the Florida Keys in 1622. Widely quoted is the Fifth Circuit’s phrase that “[disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths.” Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir.1978). Yet the Court there also took the trouble to note that it had been stipulated by all parties involved that the original owners had abandoned the wrecks, and the district court also made mention of the fact that, “The modern day government of Spain has expressed no interest in filing a claim in this litigation as a successor-owner.” Id. at 336 n. 9; Treasure Salvors, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 556 F.Supp. 1319, 1334 n. 2 (S.D.Fla.1983). Another Spanish wreck, this time from the 1715 Plate Fleet, was involved in Cobb Coin Co., Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186 (S.D.Fla.1981), and there the Spanish government again made no claim of ownership. In Martha’s Vineyard, supra, which concerned the salvage of the S.S. REPUBLIC, a ship that “plummeted to a watery grave in 1909,” the First Circuit made it a point to state that, “After petitioner brought its action in rem in the district court, no person or firm appeared to assert any overall claim of ownership.” 833 F.2d at 1065. Likewise Massachusetts v. Maritime Underwater Surveys, Inc., 403 Mass. 501, 531 N.E.2d 549 (1988), which involved salvage of “the notorious pirate ship WHYDAH,” a vessel that sank in a storm off Cape Cod in April of 1717. There, the Supreme Judicial Court of Massachusetts noted that “American courts have applied the law of finds, rather than the law of salvage, in cases involving ancient shipwrecks where no owner is likely to come forward,” id. 531 N.E.2d at 551, apparently after descendants of the illfated pirates made no attempt to rush into court and claim the booty. An example of a treasure" }, { "docid": "21584193", "title": "", "text": "Neither the plurality nor the dissent in Treasure Sal-vors clearly indicated whether the Court would require a state asserting its sovereign immunity in an in rem action to have actual possession of the res. However, the Treasure Salvors dissent indicated that the absence of possession makes the state’s assertion of sovereign immunity as a jurisdictional bar more controversial. Treasure Salvors, 458 U.S. at 710 n. 7, 102 S.Ct. at 3327 n. 7 (citing Companía Espanola de Navegacion Maritima v. The Navemar, 303 U.S. 68, 75-76, 58 S.Ct. 432, 435-36, 82 L.Ed. 667 (1938)); see also Cobb Coin Co. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 550-52 (S.D.Fla.1982) (Cobb Coin II). In Jupiter Wreck, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F.Supp. 1377, 1384 (S.D.Fla.1988), the court concluded that posséssion was not essential to the application of the Treasure Salvors principles. We agree. See also Maritime Underwater Surveys, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6, 7-8 (1st Cir.1983); Subaqueous Exploration v. Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597, 607. Actual possession of the res is not a prerequisite in an in rem action to the assertion of a claim to sovereign immunity. We next consider the “colorable claim” question. The Treasure Salvors plurality, albeit by negative implication, implied that if state officials had a “colorable basis on which to retain possession” of shipwrecked artifacts, a federal court would not have jurisdiction to resolve competing claims to the artifacts. Treasure Salvors, 458 U.S. at 682, 102 S.Ct. at 3313. The dissent would have barred the suit because the state itself purported to own the treasure and the very nature of the suit was to determine title to the property. Id. at 702, 102 S.Ct. at 3323. Perhaps the dissent would not require the claim to be colorable. Certainly, the dissent’s analysis of the colorability of the state’s claim to the treasure was far more lenient than that of the plurality. Compare id. at 694,102 S.Ct. at 3319 (plurality) with id. at 712, 102 S.Ct. at 3328 (dissent). We assume" }, { "docid": "1716415", "title": "", "text": "v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). This argument is unpersuasive. Pennhurst concerned only actions in federal court seeking to compel state officials to conform their conduct to state law. Plaintiffs in rem complaint in this case does not rely on state law, and Pennhurst is therefore inapplicable. The Court concludes that the form of relief sought by plaintiff is not inconsistent with the Eleventh Amendment. B. Action Against State 1. Nature of Inquiry In a case, such as this one, where the plaintiff has not challenged any specific action by state officials and the state seeks dismissal of the underlying in rem action, the three-question test set forth in Treasure Salvors must be altered somewhat. It no longer makes sense to ask the second question as framed in Treasure Sal-vors — whether the conduct of the state officials is ultra vires or unconstitutional. See Cobb Coin II, 549 F.Supp. at 551 (“Presumably, the second question is immaterial if the state officials are not named defendants.”). However, this second question resurfaces in another form when courts attempt to answer the first question— whether the suit is brought directly against the state. In rem suits to determine ownership of abandoned shipwrecks generally seek title against “all the world,” including “states.” Thus although they are not brought directly against states, they implicate states’ interests in the same way they implicate the interests of any other possible claimants. The minority position, in answer to the first Treasure Salvors question, is that such an in rem action simply is not a suit brought directly against the state. See Cobb Coin II, 549 F.Supp. at 551-52. Cf. Sindia Expedition, Inc. v. Wrecked and Abandoned Vessel, 895 F.2d 116 (3d Cir.1990). More often courts appear to have assumed that actions seeking to determine ownership against \"all the world” are, in effect, suits against states because states are included in the concept of “all the world.” See Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16 (1st Cir.1989); Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d" }, { "docid": "1716444", "title": "", "text": "to a determination of the state’s rights by the federal court. In this case, in contrast, the State has not filed a counterclaim or undertaken any voluntary actions other than to assert its sovereign immunity. In IDOT, the state agency was the plaintiff in an admiralty action seeking recovery for damage to a bridge allegedly caused by the defendants’ negligent operation of a tow boat pushing eight barges. One of the defendants filed a counterclaim alleging that the state agency was negligent in its operation of the bridge. The court held that the state agency, by bringing the lawsuit and invoking the federal court’s jurisdiction, had voluntarily submitted to the court’s jurisdiction and was thus not protected from the counterclaim by reason of sovereign immunity. 350 F.Supp. at 837. The difference between IDOT and the case at hand is obvious; here, the State did not bring the underlying lawsuit but rather appeared only to protect its interests after plaintiff sought title against “all the world.” In support of its argument that it has not consented to jurisdiction, the State relies on the cases of Marx v. Government of Guam, 866 F.2d 294 (9th Cir.1989), and Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16 (1st Cir.1989). In each of those cases, the court held that a state which intervened in an in rem action for the limited purpose of moving to dismiss the action on the basis of sovereign immunity did not waive its sovereign immunity. Marx, 866 F.2d at 301; Fitzgerald, 866 F.2d at 17. See also Riebe v. Unidentified, Wrecked and Abandoned 18th Century Shipwreck, 691 F.Supp. 923, 926 (E.D.N.C.1987); Subaqueous Exploration v. Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597, 614 (D.Md.1983). Plaintiff argues that these cases should not be followed because they are inconsistent with the Treasure Salvors opinion. He argues that both Marx and Fitzgerald perpetuated an erroneous statement in Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6 (1st Cir.1983). The statement at issue is: “Because this is not a claim against a named state official, and because" } ]

[ { "docid": "22724936", "title": "", "text": "the offer. Petitioner moved for summary judgment, which was granted, upon the authority of the Hackner case. On appeal, the Circuit Court of Appeals, one Judge dissenting, found that the Hackner decision did not foreclose this suit, and held that in a suit brought on the equity side of a federal district court that court is not required to apply the' State statute of limitations that would govern like suits in the courts of a State where the federal court is sitting even though the exclusive basis of federal jurisdiction is diversity of citizenship. 143 F. 2d 503. The importance of the question for the disposition of litigation in the federal courts led us to bring the case here. 323 U. S. 693. In view of the basis of the decision below, it is not for us to consider whether the New York statute would actually bar this suit were it brought in a State court. Our only concern is with the holding that the federal courts in a suit like this are not bound by local law. We put to one side the considerations relevant in disposing of questions that arise when a federal court is adjudicating a claim based on a federal law. See, for instance, Board of Comm’rs v. United States, 308 U. S. 343; Deitrick v. Greaney, 309 U. S. 190; D’Oench, Duhme & Co. v. F. D. I. C., 315 U. S. 447; Clearfield Trust Co. v. United States, 318 U. S. 363; O’Brien v. Western Union Telegraph Co., 113 F. 2d 539. Our problem only touches transactions for which rights and obligations are created by one of the States, and for the assertion of which, in case of diversity of the citizenship of the parties, Congress has made a federal court another available forum. Our starting point must be the policy of federal jurisdiction which Erie R. Co. v. Tompkins, 304 U. S. 64, embodies. In overruling Swift v. Tyson, 16 Pet. 1, Erie R. Co. v. Tompkins did not merely overrule a venerable case. It overruled a particular way of looking at law" } ]

[ { "docid": "22852346", "title": "", "text": "court below recognized the implication of the requirement that a plan of reorganization under former § 77B (f) (1) of the Bankruptcy Act (see 11 U. S. C. § 621 (2)) be one which “is fair and equitable and does not discriminate unfairly in the case of any class of creditors,” see Southern Pacific Co. v. Bogert, 250 U. S. 483, 492; Case v. Los Angeles Lumber Co., 308 U. S. 106, and that § 65 (a) requires that in liquidations a distribution of “dividends of an equal per centum” shall be made “on all allowed claims, except such as have priority or are secured,” see Globe Bank & Trust Co. v. Martin, 236 U. S. 288, 305; Moore v. Bay, 284 U. S. 4. It recognized also that the equity powers of the bankruptcy court may be exerted to subordinate the claims of one claimant to those of others of the same class where his conduct in acquiring or asserting his claim is contrary to established equitable principles. See Taylor v. Standard Gas Co., 306 U. S. 307; Pepper v. Litton, 308 U. S. 295; In re Bowman Hardware & Electric Co., 67 F. 2d 792. But the court found it unnecessary to choose between such competing considerations, and rested its decision on the ground that Prudence Company’s guaranty of the certificates was under state law to be interpreted as impliedly agreeing that any claim of its own to the mortgage indebtedness was to be subordinated to those of other certificate holders. After referring to cases in which the New York Court of Appeals had directed such a subordination, the court said (122 F. 2d 505): “An important issue herein is whether this is primarily a rule of construction of the guaranty in the certificates or is a rule of administration of insolvent estates which violates bankruptcy principles of equal distribution of a bankrupt estate among creditors. If it is a rule of construction we would follow it . . .,” citing Erie R. Co. v. Tompkins, 304 U. S. 64. “And if we thus found the guarantee to" }, { "docid": "22690830", "title": "", "text": "451. In determining what claims are allowable and how a debtor’s assets shall be distributed, a bankruptcy court does not apply the law of the state where it sits. Erie R. R. v. Tompkins, 304 U. S. 64, has no such implication. That case decided that a federal district court acquiring jurisdiction because of diversity of citizenshp should adjudicate controversies as if it were only another state court. See Holmberg v. Armbrecht, 327 U. S. 392. But bank ruptcy courts must administer and enforce the Bankruptcy Act as interpreted by this Court in accordance with authority granted by Congress to determine how and what claims shall be allowed under equitable principles. And we think an allowance of interest on interest under the circumstances shown by this case would not be in accord with the equitable principles governing bankruptcy distributions. When and under what circumstances federal courts will allow interest on claims against debtors’ estates being administered by them has long been decided by federal law. Cf. Board of Comm’rs of Jackson County v. United States, 308 U. S. 343; Royal Indemnity Co. v. United States, 313 U. S. 289. The general rule in bankruptcy and in equity receivership has been that interest on the debtors’ obligations ceases to accrue at the beginning of proceedings. Exaction of interest, where the power of a debtor to pay even his contractual obligations is suspended by law, has been prohibited because it was considered in the nature of a penalty imposed because of delay in prompt payment — a delay necessitated by law if the courts are properly to preserve and protect the estate for the benefit of all interests involved. Thus this Court has said: “We cannot agree that a penalty in the name of interest should be inflicted upon the owners of the mortgage lien for resisting claims which we have disallowed. As a general rule, after property of an insolvent passes into the hands of a receiver or of an assignee in insolvency, interest is not allowed on the claims against the funds. The delay in distribution is the act of" }, { "docid": "22317614", "title": "", "text": "any contrary rule of state law and that the California law governs only in the absence of Congress’ affirmative action. See note 4 supra. See U. S. Const., Art. IV, §3, cl. 2: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . .\"; Camfield v. United States, 167 U. S. 518, 524: “. . . the Government has, with respect to its own lands, the rights of an ordinary proprietor, to maintain its possession and to prosecute trespassers”; United States v. Walter, 263 U. S. 15, 17: “The United States can protect its property by criminal laws . . . .” Board of Commissioners v. United States, 308 U. S. 343; Deitrick v. Greaney, 309 U. S. 190; Royal Indemnity Co. v. United States, 313 U. S. 289; D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447; United States v. Allegheny County, 322 U. S. 174; Holmberg v. Armbrecht, 327 U. S. 392. See also discussion in Notes, Federal Common Law in Government Action for Tort (1946) 41 Ill. L. Rev. 551; Exceptions to Erie v. Tompkins: The Survival of Federal Common Law (1946) 59 Harv. L. Rev. 966. If the ruling followed, that the waters of an interstate stream must be equitably apportioned among the states through which it flows in the arid regions of the West, is not properly to be characterized as merely one of “federal common law,” it marks off at any rate another area for federal judicial decision not dependent on application of state law or, indeed, upon the existence of federal legislation. The problem of the Government’s immunity to suit is different, of course, from that of the nature of the substantive rights it may acquire, for example, by the purchase of property as against claims of others for which there may or may not be available a legal remedy against it. See Blair v. Commissioner, 300 U. S. 5; Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204. That" }, { "docid": "22352865", "title": "", "text": "interstate commerce is a violation of the Sherman Act save only as it is within the protection of a lawfully granted patent monopoly. See United States v. Univis Lens Co., 316 U. S. 241, 250, and cases cited; United States v. Masonite Corp., 316 U. S. 265, 275-77. Agreements fixing the competitive sales price of articles moving interstate, not within the protection of a patent, are unlawful because prohibited by the Sherman Act. It is familiar doctrine that the prohibition of a federal statute may not be set at naught, or its benefits denied, by state statutes or state common law rules. In such a case our decision is not controlled by Erie R. Co. v. Tompkins, 304 U. S. 64. There we followed state law because it was the law to be applied in the federal courts. But the doctrine of that case is inapplicable to those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law. Royal Indemnity Co. v. United States, 313 U. S. 289, 296; Prudence Corp. v. Geist, 316 U. S. 89, 95; Board of Comm’rs v. United States, 308 U. S. 343, 349-50; cf. O’Brien v. Western Union Telegraph Co., 113 F. 2d 539, 541. When a federal statute condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted. To the federal statute and policy, conflicting state law and policy must yield. Constitution, Art. VI, cl. 2; Awotin v. Atlas Exchange Bank, 295 U. S. 209; Deitrick v. Greaney, 309 U. S. 190, 200-01. The federal courts have been consistent in holding that local rules of estoppel will not be permitted to thwart the purposes of statutes of the United States. See, in" }, { "docid": "22852351", "title": "", "text": "federal statutes, federal not local law applies. See Awotin v. Atlas Exchange Bank, 295 U. S. 209; Chesapeake & Ohio Ry. v. Martin, 283 U. S. 209, 212-213; Board of Comm’rs v. United States, 308 U. S. 343, 349-350; Deitrick v. Greaney, 309 U. S. 190, 200; Royal Indemnity Co. v. United States, 313 U. S. 289, 296. The court of bankruptcy is a court of equity to which the judicial administration of the bankrupt’s estate is committed, Securities & Exchange Commission v. U. S. Realty Co., 310 U. S. 434, 455-457, and it is for that court—not without appropriate regard for rights acquired under rules of state law—to define and apply federal law in determining the extent to which the inequitable conduct of a claimant in acquiring or asserting his claim in bankruptcy requires its subordination to other claims which, in other respects, are of the same class. Cf Taylor v. Standard Gas Co., supra; Pepper v. Litton supra. But the question remains whether there is any equity arising from the Prudence Company’s failure to perform its contract of guaranty which a bankruptcy court should recognize as requiring the subordination of the company’s interest in the mortgage to the claims of the other mortgage creditors. It is a familiar equity rule, applied by the federal courts in liquidation proceedings under federal statutes, that a solvent guarantor or surety of an insolvent’s obligation will not be permitted, either by taking indemnity from his principal or by virtue of his right of subrogation, to compete with other creditors payment of whose claims he has undertaken to assure, until they are paid in full. If the surety were allowed to prove his own claim before the creditor is paid, he would to that extent diminish the creditor’s dividends upon his claim, and thus defeat the purpose for which he had given the indemnity. United States v. National Surety Co., 254 U. S. 73, 76; Jenkins v. National Surety Co., 277 U. S. 258; American Surety Co. v. Electric Co., 296 U. S. 133; Peoples v. Peoples Bros., 254 F. 489; U. S." }, { "docid": "22690829", "title": "", "text": "may be a reason why that state’s law should govern. But apparently the bonds were sold to people all over the nation. And Kentucky’s interest in having its own laws govern the obligation cannot be minimized. For the property mortgaged was there; the company’s business was chiefly there; its products were widely distributed there; and the prices paid by Kentuckians for those products would depend, at least to some extent, on the stability of the company as affected by the carrying charges on its debts. But we need not decide which, if either, of these two states’ laws govern the creation and subsistence and validity of the obligation for interest on interest here involved. For assuming, arguendo, that the obligation for interest on interest is valid under the law of New York, Kentucky, and the other states having some interest in the indenture transaction, we would still have to decide whether allowance of the claim would be compatible with the policy of the Bankruptcy Act. Cf. Kuehner v. Irving Trust Co., 299 U. S. 445, 451. In determining what claims are allowable and how a debtor’s assets shall be distributed, a bankruptcy court does not apply the law of the state where it sits. Erie R. R. v. Tompkins, 304 U. S. 64, has no such implication. That case decided that a federal district court acquiring jurisdiction because of diversity of citizenshp should adjudicate controversies as if it were only another state court. See Holmberg v. Armbrecht, 327 U. S. 392. But bank ruptcy courts must administer and enforce the Bankruptcy Act as interpreted by this Court in accordance with authority granted by Congress to determine how and what claims shall be allowed under equitable principles. And we think an allowance of interest on interest under the circumstances shown by this case would not be in accord with the equitable principles governing bankruptcy distributions. When and under what circumstances federal courts will allow interest on claims against debtors’ estates being administered by them has long been decided by federal law. Cf. Board of Comm’rs of Jackson County v. United States," }, { "docid": "22694610", "title": "", "text": "reversed. 130 F. 2d 93. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problems raised and the conflict between the decision below and Security-First Nat. Bank v. United States, 103 F. 2d 188, from the Ninth Circuit. We agree with the Circuit Court of Appeals that the rule of Erie R. Co. v. Tompkins, 304 U. S. 64, does not apply to this action. The rights and duties of the United States on commercial paper which it issues are governed by federal rather than local law. When the United States disburses its funds or pays its debts, it is exercising a constitutional function or power. This check was issued for services performed under the Federal Emergency Relief Act of 1935, 49 Stat. 115. The authority to issue the check had its origin in the Constitution and the statutes of the United States and was in no way dependent on the laws of Pennsylvania or of any other state. Cf. Board of Commissioners v. United States, 308 U. S. 343; Royal Indemnity Co. v. United States, 313 U. S. 289. The duties imposed upon the United States and the rights acquired by it as a result of the issuance find their roots in the same federal sources. Cf. Deitrick v. Greaney, 309 U. S. 190; D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447. In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards. United States v. Guaranty Trust Co., 293 U. S. 340, is not opposed to this result. That case was concerned with a conflict of laws rule as to the title acquired by a transferee in Yugoslavia under a forged endorsement. Since the payee’s address was Yugoslavia, the check had “something of the quality of a foreign bill” and the law of Yugoslavia was applied to determine what title the transferee acquired. In our choice of the applicable federal rule we have occasionally selected state" }, { "docid": "22320727", "title": "", "text": "S. 268, 272-3. It has been held in non-diversity cases, since Erie R. Co. v. Tompkins, that the federal courts will apply their own rule of res judicata. Sunshine Coal Co. v. Adkins, 310 U. S. 381, 403; Jackson v. Irving Trust Co., 311 U. S. 494, 503. This Court has also required that effect be given in both state and federal courts to a plea of res judicata arising from decrees of a bankruptcy court. Stoll v. Gottlieb, 305 U. S. 165; Chicot County Dist. v. Bank, 308 U. S. 371. And it is well settled that where the trustee in bankruptcy unsuccessfully litigates an issue out side the bankruptcy court the decision against him is binding in the bankruptcy court. Davis v. Friedlander, 104 U. S. 570; Fischer v. Pauline Oil Co., 309 U.S. 294, 302-03. At least to the extent that the issue of fraud raised by the objections to petitioner’s claim as between petitioner and the bankrupt has been litigated and decided before the bankruptcy and has since been litigated between the petitioner and the trustee in bankruptcy, who represents the bankrupt and his creditors, that issue is now res judicata and may not further be litigated in the bankruptcy proceeding. Hence we turn to the question, what issues essential to the allegations that the judgment was procured by fraud have been so litigated. Examination of the record in this proceeding, including-the objections filed to petitioner’s claim, the applications of the bankrupt, the trustee, and the creditors, for authority to attack the judgment in the District'Court of Southern California, and the-proceedings instituted in that court for that purpose, make plain the nature of the fraud charged against petitioner. Shortly stated it is that, in the course of transactions with petitioner the bankrupt acquired possession of and converted to his own use a quantity of worthless minerals, owned or previously owned or possessed by petitioner, who, by means of perjured allegations in the complaint and perjured testimony as to their amount and value, procured a default judgment against thé bankrupt for an amount .in excess of their" }, { "docid": "22320722", "title": "", "text": "value of the property alleged to have been converted and participating in the hearing on that issue. It also held that the charge of fraud was denied and unsupported by proof, adding “that ground of appellants’ motion appears to have been abandoned.” There was no review of this decision. The court below, in rejecting petitioner’s plea of res judicata, and in directing inquiry into the merits of the original cause of action and into the allegation of fraud in procurement of the judgment, rested its decision upon the ground that the bankrupt’s trustee had failed to place before the California district court any contention or proof that petitioner’s testimony, particularly as to the value of the converted property, was perjured, that the bankrupt was not indebted to petitioner, or that the allegations of the complaint were untrue. The court, relying on Pepper v. Litton, supra, also held that the bankruptcy court, being a court having equity powers, was not bound by the principles of res judicata as to issues which were not pressed before the California district court, and that the authority of the bankruptcy court as a court of equity included the power to inquire into the validity of the claim upon which the judgment, presented as a claim against the estate, was based. We need not consider whether, apart from the requirements of the full faith and credit clause of the Constitution, the rule of res judicata applied in the federal courts, in diversity of citizenship cases, under the doctrine of Erie R. Co. v. Tompkins, 304 U. S. 64; cf. Guaranty Trust Co. v. York, 326 U. S. 99; Holmberg v. Armbrecht, 327 U. S. 392, can be other than that of the state in which the federal court sits. For nothing decided in Erie R. Co. v. Tompkins, supra, requires a court of bankruptcy, in applying the statutes of the United States governing the liquidation of bankrupts’ estates, to adopt local rules of law in determining what claims are provable, or to be allowed, or how the bankrupt’s estate is to be distributed among claimants. Cf." }, { "docid": "22320724", "title": "", "text": "Board of Comm’rs v. United States, 308 U. S. 343; Deitrick v. Greaney, 309 U. S. 190; D’Oench, Duhme & Co. v. F. D. I. C., 315 U. S. 447; Helvering v. Stuart, 317 U. S. 154, 161-2; Sola Electric Co. v. Jefferson Co., 317 U. S. 173, 176; Wragg v. Federal Land Bank, 317 U. S. 325, 328; Clearfield Trust Co. v. United States, 318 U. S. 363. In passing upon and rejecting or allowing the proof of claim in this case the court of bankruptcy proceeds — not without appropriate regard for rights acquired under state law — under federal statutes which govern the proof and allowance of claims, based on judgments. In determining what judgments are provable and what objections may be made to their proof; and in determining the extent to which the inequitable conduct of a claimant in acquiring or asserting his claim in bankruptcy, requires its rejection or its subordination to other claims which, in other respects are of the same class, the bankruptcy court is defining and applying federal, not state, law. See Prudence Realization Corp. v. Geist, supra, 95, 96 and cases cited; cf. United States v. Pelzer, 312 U. S. 399, 402-03. It is true that a bankruptcy court is also a court of equity, Local Loan Co. v. Hunt, 292 U. S. 234, 240, and may exercise equity powers in bankruptcy proceedings to set aside fraudulent claims, including a fraudulent judgment where the issue of fraud has not been previously adjudicated. Pepper v. Litton, supra, 306. In appro priate cases, acting upon equitable principles, it may also subordinate the claim of one creditor to those of others in order to prevent the consummation of a course of conduct by the claimant which, as to them, would be fraudulent or otherwise inequitable. Taylor v. Standard Gas Co., 306 U. S. 307; Pepper v. Litton, supra; Prudence Realization Corp. v. Geist, supra; American Surety Co. v. Sampsell, 327 U. S. 269. But we are aware of no principle of law or equity which sanctions the rejection by a federal court of the" }, { "docid": "22093408", "title": "", "text": "(SDNY), aff’d, 294 F. 2d 415 (CA2 1961) (en banc) (ICA); Abrahamson v. Fleschner, 568 F. 2d 862 (CA2 1977) (IAA); Bolger v. Laventhol, Krekstein, Horwath & Horwath, 381 F. Supp. 260 (SDNY 1974) (IAA). The two courts also sanctioned the bringing of the suit in derivative form, apparently assuming that, as we held in J. I. Case Co. v. Borak, 377 U. S. 426, 432 (1964), “[t]o hold that derivative actions are not within the sweep of the [right] would ... be tantamount to a denial of private relief.” As petitioners never disputed the existence of private, derivative causes of action under the Acts, and as in this Court all agree that the question has not been put in issue, Brief for Petitioners 28; Brief for Respondents 15, we shall assume without deciding that respondents have implied, derivative causes of action under the ICA and IAA. Since we proceed on the premise of the existence of a federal cause of action, it is clear that “our decision is not controlled by Erie R. Co. v. Tompkins, 304 U. S. 64,” and state law does not operate of its own force. Sola Electric Co. v. Jefferson Co., 317 U. S. 173, 176 (1942). See Board of Comm’rs v. United States, 308 U. S. 343, 349-350 (1939); Deitrick v. Greaney, 309 U. S. 190, 200 (1940); C. Wright, Federal Courts 284 (3d ed. 1976); Mishkin, The Variousness of “Federal Law”: Competence and Discretion in the Choice of National and State Rules for Decision, 105 U. Pa. L. Rev. 797, 799-800 (1957); Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 529 (1954); 2 L. Loss, Securities Regulation 971 (2d ed. 1961). Rather, “[w]hen a federal statute condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted.” Sola Electric Co. v. Jefferson Co., supra, at 176. See Tunstall v. Locomotive Firemen" }, { "docid": "22320725", "title": "", "text": "federal, not state, law. See Prudence Realization Corp. v. Geist, supra, 95, 96 and cases cited; cf. United States v. Pelzer, 312 U. S. 399, 402-03. It is true that a bankruptcy court is also a court of equity, Local Loan Co. v. Hunt, 292 U. S. 234, 240, and may exercise equity powers in bankruptcy proceedings to set aside fraudulent claims, including a fraudulent judgment where the issue of fraud has not been previously adjudicated. Pepper v. Litton, supra, 306. In appro priate cases, acting upon equitable principles, it may also subordinate the claim of one creditor to those of others in order to prevent the consummation of a course of conduct by the claimant which, as to them, would be fraudulent or otherwise inequitable. Taylor v. Standard Gas Co., 306 U. S. 307; Pepper v. Litton, supra; Prudence Realization Corp. v. Geist, supra; American Surety Co. v. Sampsell, 327 U. S. 269. But we are aware of no principle of law or equity which sanctions the rejection by a federal court of the salutary principle of res judicata, which is founded upon the generally recognized public policy that there must be some end to litigation and that when one appears in court to present his case, is fully heard, and the Contested issue is decided against him, he may not later renew the litigation in another eourt. Baldwin v. Traveling Men’s Assn., 283 U. S. 622, 525-6. Before Erie R. Co. v. Tompkins it was recognized by this Court that, apart from the full faith and credit clause, a judgment duly rendered in one court will be recognized as res judicata in a suit between the same parties in a federal court. Cromwell v. County of Sac, 94 U. S. 351; Case v. Beauregard, 101 U. S. 688; Baltimore S. S. Co. v. Phillips, 274 U. S. 316; Grubb v. Public Utilities Comm’n, 281 U. S. 470. See Baldwin v. Traveling Men’s Assn., supra, and cases cited; cf. Chicago, R. I. & P. R. Co. v. Schendel, 270 U. S. 611; Milwaukee County v. White Co., 296 U." }, { "docid": "11489863", "title": "", "text": "of diversity of citizenship, it has a right to be heard by this Court on the issue of unfair competition, Section 24 of the Judicial Code, 28 U.S.C.A. § 41(1) (c); Dwinell-Wright Co. v. National Fruit Product Co., 1 Cir., 129 F.2d 848, 850, 851 The law to be applied on the first leg is federal statutory law and, where that is ambiguous or silent, federal common law. The point has been discussed so ably and so recently by S. S. Zlinkoff in Erie v. Tompkins: In Relation to the Law of Trade-Marks and Unfair Competition, 42 Columbia Law Review 955, that, borrowing from that author, I shall merely state compendiously the basis for my conclusion. Although the Supreme Court of the United States now requires that in suits where jurisdiction is founded solely on diversity of citizenship, the United States courts should apply the law of the state where suit is instituted (Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Pecheur Lozenge Co., Inc., v. National Candy Co., Inc., 315 U.S. 666, 667, 62 S.Ct. 853, 86 L.Ed. 1103, trade-mark), that tribunal has not held that where issues of validity, infringement, defenses or remedies arise under the terms of, or in the interstices of, the trade-mark laws of the United States the United States courts should apply local law. Indications are to the contrary. Compare Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381 as explained 42 Col.L.Rev. 981—983. Thus it has been held that a federal common law rather than a local common law should be applied in formulating a gloss for, or filling a lacuna in, the act governing the Federal Deposit Insurance Corporation (D’Oench, Duhme & Co., Inc. v. Federal Deposit Ins. Co., 315 U.S. 447, 455, 456, 463, 464, 465-475, 62 S.Ct. 676, 86 L.Ed. 956), the Bankruptcy Act (Prudence Realization Corp. v. Geist, 316 U. S. 89, 95, 62 S.Ct. 978, 86 L.Ed. 1293), the National Bank Act (Deitrick, Receiver, v. Greaney, 309 U.S." }, { "docid": "22320723", "title": "", "text": "California district court, and that the authority of the bankruptcy court as a court of equity included the power to inquire into the validity of the claim upon which the judgment, presented as a claim against the estate, was based. We need not consider whether, apart from the requirements of the full faith and credit clause of the Constitution, the rule of res judicata applied in the federal courts, in diversity of citizenship cases, under the doctrine of Erie R. Co. v. Tompkins, 304 U. S. 64; cf. Guaranty Trust Co. v. York, 326 U. S. 99; Holmberg v. Armbrecht, 327 U. S. 392, can be other than that of the state in which the federal court sits. For nothing decided in Erie R. Co. v. Tompkins, supra, requires a court of bankruptcy, in applying the statutes of the United States governing the liquidation of bankrupts’ estates, to adopt local rules of law in determining what claims are provable, or to be allowed, or how the bankrupt’s estate is to be distributed among claimants. Cf. Board of Comm’rs v. United States, 308 U. S. 343; Deitrick v. Greaney, 309 U. S. 190; D’Oench, Duhme & Co. v. F. D. I. C., 315 U. S. 447; Helvering v. Stuart, 317 U. S. 154, 161-2; Sola Electric Co. v. Jefferson Co., 317 U. S. 173, 176; Wragg v. Federal Land Bank, 317 U. S. 325, 328; Clearfield Trust Co. v. United States, 318 U. S. 363. In passing upon and rejecting or allowing the proof of claim in this case the court of bankruptcy proceeds — not without appropriate regard for rights acquired under state law — under federal statutes which govern the proof and allowance of claims, based on judgments. In determining what judgments are provable and what objections may be made to their proof; and in determining the extent to which the inequitable conduct of a claimant in acquiring or asserting his claim in bankruptcy, requires its rejection or its subordination to other claims which, in other respects are of the same class, the bankruptcy court is defining and applying" }, { "docid": "22852350", "title": "", "text": "(Union Guarantee & Mortgage Co.), supra, 345. But so far as the New York cases, without evidence of the actual intent of the parties, subordinate the guarantor on grounds of “presumed intention,” or “the existence of special equities,” or the “natural equities” involved, Title Guarantee & Trust Co. v. Mortgage Commission, 273 N. Y. 415, 426, 7 N. E. 2d 841; Matter of Title & Mortgage Guaranty Co., supra, 355; Pink v. Thomas, supra, 12; Matter of People (Union Guarantee & Mortgage Co.), supra, 343; Matter of Lawyers’ Title & Guaranty Co., 287 N. Y. 264, 272, 39 N. E. 2d 233, we are unable to say that the rule laid down is other than one of state law governing the relative rights of claimants in a state liquidation. Nothing decided in Erie R. Co. v. Tompkins, 304 U. S. 64, requires a court of bankruptcy to apply such a local rule governing the liquidation of insolvent estates. The bankruptcy act prescribes its own criteria for distribution to creditors. In the interpretation and application of federal statutes, federal not local law applies. See Awotin v. Atlas Exchange Bank, 295 U. S. 209; Chesapeake & Ohio Ry. v. Martin, 283 U. S. 209, 212-213; Board of Comm’rs v. United States, 308 U. S. 343, 349-350; Deitrick v. Greaney, 309 U. S. 190, 200; Royal Indemnity Co. v. United States, 313 U. S. 289, 296. The court of bankruptcy is a court of equity to which the judicial administration of the bankrupt’s estate is committed, Securities & Exchange Commission v. U. S. Realty Co., 310 U. S. 434, 455-457, and it is for that court—not without appropriate regard for rights acquired under rules of state law—to define and apply federal law in determining the extent to which the inequitable conduct of a claimant in acquiring or asserting his claim in bankruptcy requires its subordination to other claims which, in other respects, are of the same class. Cf Taylor v. Standard Gas Co., supra; Pepper v. Litton supra. But the question remains whether there is any equity arising from the Prudence Company’s failure" }, { "docid": "22317592", "title": "", "text": "respondents are not liable for the injuries inflicted upon the Government. We agree with the Government’s view that the creation or negation of such a liability is not a matter to be determined by state law. The case in this aspect is governed by the rule of Clearfield Trust Co. v. United States, 318 U. S. 363, and National Metropolitan Bank v. United States, 323 U. S. 454, rather than that of Erie R. Co. v. Tompkins, supra. In the Clearfield case, involving liabilities arising out of a forged indorsement of a check issued by the United States, the Court said: “The authority to issue the check had its origin in the Constitution and the statutes of the United States and was in no way dependent on the laws of Pennsylvania or of any other state. Cf. Board of Commissioners v. United States, 308 U. S. 343; Royal Indemnity Co. v. United States, 313 U. S. 289. The duties imposed upon the United States and the rights acquired by it as a result of the issuance find their roots in the same federal sources. Cf. Deitrick v. Greaney, 309 U. S. 190; D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447. In the absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.” 318 U. S. at 366-367. Although the Clearfield case applied these principles to a situation involving contractual relations of the Government, they are equally applicable in the facts of this case where the relations affected are noncontractual or tortious in character. Perhaps no relation between the Government and a citizen is more distinctively federal in character than that between it and members of its armed forces. To whatever extent state law may apply to govern the relations between soldiers or others in the armed forces and persons outside them or nonfederal governmental agencies, the scope, nature, legal incidents and consequences of the relation between persons in service and the Government are fundamentally derived from federal sources and governed" }, { "docid": "22370235", "title": "", "text": "jurisdiction. Where a case involves a nonconstitutional federal issue, however, the necessity for deciding which depends upon the decision on an underlying issue of state law, the practice in federal courts has been, when necessary, to decide both issues. This was the course we followed in Markham v. Allen, 326 ,U. S. 490, 495-6, a case arising under the Trading with the Enemy Act, where an issue was the construction of a state statute. The state law question in Estate of Spiegel v. Commissioner, supra, was concededly difficult and unsettled; its decision admittedly controlled the existence of a federal question, since a finding that there was no possibility of reverter under Illinois law would have finally determined the issue on which the case was decided. And yet, although a method may have existed for obtaining an adjudication on the issue from, the Illinois courts, 335 U. S. 632, 673-4, this Court followed the procedure which we adopt here of depending upon the determination of state law by the Court of Appeals. 335 U. S. 701, 707-8. In so doing, it followed the-decision i’fi Helvering v. Stuart, 317 U. S. 154, 161, et seq. Erie R. Co. v. Tompkins, 304 U. S. 64, a common-law case, is itself' a precedent against, any general ruling that cases properly in the federal courts that depend upon state law should have that issue submitted to state courts for decision. See the later decision in the. same case, Tompkins v. Erie R. Co., 98 F. 2d 49. The cases mentioned above where this Court required submission of single issues, excised from the controversy,, to stale courts were cases in equity. The discretion of equity as to the terms upon which it would grant its remedies, in the light of our rule to avoid an interpretation of the Federal Constitution. unless necessary, was relied upon to justify a departure from normal procedure. In the Magnolia case, we directed that the trustee file plenary proceedings to determine title in a state court liti-. gation necessarily complete in itself. The complaint here in a single count seeks recovery" }, { "docid": "22320726", "title": "", "text": "salutary principle of res judicata, which is founded upon the generally recognized public policy that there must be some end to litigation and that when one appears in court to present his case, is fully heard, and the Contested issue is decided against him, he may not later renew the litigation in another eourt. Baldwin v. Traveling Men’s Assn., 283 U. S. 622, 525-6. Before Erie R. Co. v. Tompkins it was recognized by this Court that, apart from the full faith and credit clause, a judgment duly rendered in one court will be recognized as res judicata in a suit between the same parties in a federal court. Cromwell v. County of Sac, 94 U. S. 351; Case v. Beauregard, 101 U. S. 688; Baltimore S. S. Co. v. Phillips, 274 U. S. 316; Grubb v. Public Utilities Comm’n, 281 U. S. 470. See Baldwin v. Traveling Men’s Assn., supra, and cases cited; cf. Chicago, R. I. & P. R. Co. v. Schendel, 270 U. S. 611; Milwaukee County v. White Co., 296 U. S. 268, 272-3. It has been held in non-diversity cases, since Erie R. Co. v. Tompkins, that the federal courts will apply their own rule of res judicata. Sunshine Coal Co. v. Adkins, 310 U. S. 381, 403; Jackson v. Irving Trust Co., 311 U. S. 494, 503. This Court has also required that effect be given in both state and federal courts to a plea of res judicata arising from decrees of a bankruptcy court. Stoll v. Gottlieb, 305 U. S. 165; Chicot County Dist. v. Bank, 308 U. S. 371. And it is well settled that where the trustee in bankruptcy unsuccessfully litigates an issue out side the bankruptcy court the decision against him is binding in the bankruptcy court. Davis v. Friedlander, 104 U. S. 570; Fischer v. Pauline Oil Co., 309 U.S. 294, 302-03. At least to the extent that the issue of fraud raised by the objections to petitioner’s claim as between petitioner and the bankrupt has been litigated and decided before the bankruptcy and has since been litigated between" }, { "docid": "22317613", "title": "", "text": "effect, for tortious interference by a third person with the relation between the Government and the soldier and consequent harm to the Government’s interest, rights and obligations in that relation, not simply to subrogation to the soldier’s rights against the tort-feasors. We may assume that the release was not effective to discharge any liability owing independently to the Government, cf. note 5, although fully effective as against any claim by the soldier. Only if such an independent liability were found to exist would any issue concerning the release be reached. Including the powers of Congress to “provide for the common Defence,” “raise and support Armies,” and “make Rules for the Government and Regulation of the land and naval Forces,” U. S. Const., Art. I, § 8, as well as “To declare War” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .” Ibid. The decision of the Circuit Court of Appeals seems to have been predicated upon the assumption that Congress could override any contrary rule of state law and that the California law governs only in the absence of Congress’ affirmative action. See note 4 supra. See U. S. Const., Art. IV, §3, cl. 2: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . .\"; Camfield v. United States, 167 U. S. 518, 524: “. . . the Government has, with respect to its own lands, the rights of an ordinary proprietor, to maintain its possession and to prosecute trespassers”; United States v. Walter, 263 U. S. 15, 17: “The United States can protect its property by criminal laws . . . .” Board of Commissioners v. United States, 308 U. S. 343; Deitrick v. Greaney, 309 U. S. 190; Royal Indemnity Co. v. United States, 313 U. S. 289; D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447; United States v. Allegheny County, 322 U. S. 174; Holmberg v. Armbrecht, 327 U. S." }, { "docid": "22093409", "title": "", "text": "v. Tompkins, 304 U. S. 64,” and state law does not operate of its own force. Sola Electric Co. v. Jefferson Co., 317 U. S. 173, 176 (1942). See Board of Comm’rs v. United States, 308 U. S. 343, 349-350 (1939); Deitrick v. Greaney, 309 U. S. 190, 200 (1940); C. Wright, Federal Courts 284 (3d ed. 1976); Mishkin, The Variousness of “Federal Law”: Competence and Discretion in the Choice of National and State Rules for Decision, 105 U. Pa. L. Rev. 797, 799-800 (1957); Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 529 (1954); 2 L. Loss, Securities Regulation 971 (2d ed. 1961). Rather, “[w]hen a federal statute condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted.” Sola Electric Co. v. Jefferson Co., supra, at 176. See Tunstall v. Locomotive Firemen & Enginemen, 323 U. S. 210, 213 (1944); Board of Comm’rs v. United States, supra. Cf. United States v. Kimbell Foods, Inc., 440 U. S. 715, 726-727 (1979); Butner v. United States, 440 U. S. 48 (1979). Legal rules which impact significantly upon the effectuation of federal rights must, therefore, be treated as raising federal questions. See Robertson v. Wegmann, 436 U. S. 584, 588 (1978) (statute of limitations) ; Auto Workers v. Hoosier Corp., 383 U. S. 696, 701 (1966) (same); J. I. Case Co. v. Borak, supra, at 435 (security for expenses statute); Sola Electric Co. v. Jefferson Co., supra, at 176 (rules of estoppel); Deitrick v. Greaney, supra, at 200 (affirmative defense to federal-claim). See generally Friendly, In Praise of Erie — and of the New Federal Common Law, 39 N. Y. U. L. Rev. 383, 408 (1964); Hill, State Procedural Law in Federal Nondiversity Litigation, 69 Harv. L. Rev. 66, 92-93 (1955). Thus, “the overriding federal law applicable here would, where the facts required, control the appropriateness of redress despite the" } ]

[ { "docid": "4319258", "title": "", "text": "judicial approval. (United States v. Scafidi (2d Cir. 1977) 564 F.2d 633; United States v. Dalia (3rd Cir. 1978) 575 F.2d 1344.) The Fourth Circuit has held that Title III implicitly authorizes break-ins, but only with specific judicial approval. (Application of United States (4th Cir. 1977) 563 F.2d 637.) The Eighth Circuit has not accepted the argument that Title III implicitly authorizes break-ins, but it has upheld judicially-approved break-ins on a different theory. (United States v. Agrusa (8th Cir. 1976) 541 F.2d 690 (opinions by divided court, rehearing en banc denied over four-judge dissent).) The District of Columbia Circuit has declined to read Title III as implicit authority for break-in orders. (United States v. Ford (1977) 180 U.S.App.D.C. 1, 553 F.2d 146.) And the Sixth Circuit has held that no authority exits, in Title III or any other statute, to empower district courts to authorize break-ins. (United States v. Finaz-zo (6th Cir. 1978) 583 F.2d 837.) This Circuit has yet to pass on the question. A. Legislative History of Title III The Government contends that “Congress simply neglected to address the obvious” and that authority to sanction break-ins is implicit in the provision of Title III permitting bugging. Appellants contend that Title Ill’s attempts carefully to circumscribe invasions of privacy are inconsistent with congressional intent to legalize break-ins. A meticulous review of the legislative history of Title III convinces us that the appellants are correct. Title III constitutes “a comprehensive scheme for the regulation of wiretapping and electronic surveillance.” (Gelbard v. United States (1972) 408 U.S. 41, 46, 92 S.Ct. 2357, 33 L.Ed.2d 179.) As Chief Justice Burger noted in his concurring opinion in United States v. Donovan (1977) 429 U.S. 413, 441, 97 S.Ct. 658, 675, 50 L.Ed.2d 652 (Burger, C. J., partial concurrence): “Congress drafted this statute with exacting precision. As its principal sponsor, Senator McClellan, put it: ‘[A] bill as controversial as this . . . requires close attention to the dotting of every “i” and the crossing of every “t” . . . .’ Under these circumstances, the exact words of the statute provide the surest" } ]

[ { "docid": "4939873", "title": "", "text": "statutory procedures of title III are to have any real meaning as to the Second through Fifth Wiretaps, the Government must be held to a standard above that which is revealed by the facts of this case. Because the Second through Fifth Wiretaps (and extensions thereof) do not meet the necessity requirement, evidence obtained as a result of those wiretaps is “fruit of the poisonous tree,” and must be suppressed. See United States v. Spagnuolo, 549 F.2d 705, 711-12 (9th Cir.1977) (recognizing codification of fruit of poisonous tree doctrine in title III). III. MINIMIZATION OF INTERCEPTED COMMUNICATIONS A. Burden of Proof Minimization is required by section 2518(5), which provides that “every order and extension thereof ... shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.” 18 U.S.C.A. § 2518(5). Section 2518(5) does not require that all innocent conversations be left untouched. “It merely provides that unnecessary intrusions be minimized, or reduced to the smallest degree possible.” United States v. Clerkley, 556 F.2d 709, 715 (4th Cir.1977), cert. denied, 436 U.S. 930, 98 S.Ct. 2830, 56 L.Ed.2d 775 (1978). In order to determine whether the Government properly minimized interception of conversations, a test of reasonableness is applied to the particular facts of each case. Scott v. United States, 436 U.S. 128, 139-40, 98 S.Ct. 1717, 1724-25, 56 L.Ed.2d 168 (1978). The Government has the burden to show proper minimization. See Torres, 908 F.2d at 1423 (citing United States v. Rizzo, 491 F.2d 215 [2d Cir.], cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 [1974]); United States v. Willis, 890 F.2d 1099, 1102 (10th Cir.1989). Minimization only requires the Government agents to exercise good faith, reasonable efforts to minimize the extent of those intrusions. Where a good faith reasonable effort has been made, interception is valid even though some non-pertinent calls are monitored. See United States v. Falcone, 364 F.Supp. 877, 885 (D.N.J.1973), aff'd, 500 F.2d 1401 (3d Cir.1974). Once the Government has made a prima facie showing of reasonable minimization, the burden shifts to defendants to show how" }, { "docid": "5009048", "title": "", "text": "of January 29, 1979, and extensions issued on March 1, March 30 and April 28, as well as the order expanding the surveillance on April 7. They contend that the government, through the monitoring FBI agents, violated the minimization provisions of the orders and the requirement of Title III by listening to conversations not covered by the orders issued by Chief Judge Parsons. The term minimization is a shorthand expression which represents the government’s obligation to reduce to the extent possible interception of conversations which are not the subject of the court order. Minimization is to be judged on a case by case analysis of the reasonableness of the government’s conduct in terminating non-pertinent conversations. Scott v. United States, 436 U.S. 128, 139-40, 98 S.Ct. 1717, 1724-25, 56 L.Ed.2d 168 (1978). See also United States v. Feldman, 606 F.2d 673, 677-79 (6th Cir. 1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1648, 64 L.Ed.2d 236 (1980); United States v. Hyde, 574 F.2d 856, 869-70 (5th Cir. 1978); United States v. Abascal, 564 F.2d 821, 826-27 (8th Cir. 1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978); United States v. Clerkley, 556 F.2d 709, 716-18 (4th Cir. 1977), cert. denied, 436 U.S. 930, 98 S.Ct. 2830, 56 L.Ed.2d 775 (1978); United States v. Chavez, 533 F.2d 491, 492-93 (9th Cir. 1976), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1977); United States v. Armocida, 515 F.2d 29, 42-46 (3d Cir. 1975), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975); United States v. Quintana, 508 F.2d 867, 873-76 (7th Cir. 1975). The reasonableness approach reconciles the frequently difficult task of determining the character of an intercepted conversation with the statutory policy of minimizing any intrusion on personal privacy. See S.Rep. 1097, supra p. 31 at 27, 2112. It must be remembered that “[t]he statute does not forbid the interception of all non-relevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to ‘minimize’ the interception of such conversations.” Scott v. United States, 436 U.S. at" }, { "docid": "1317814", "title": "", "text": "App. 170. . Two of the telephone lines were listed to Kenneth and Dennis Bruno and were located at 17404 O’Conner, Allen Park, Michigan. Two of the telephone lines were listed to Charles Cotton and Lela Jackson and were located at 20486 Steel, Detroit, Michigan. The remaining two telephone lines were listed to Moon Shell Service Station located at 13824 Livemois, Detroit, Michigan. The Government had probable cause to believe Louise Bruno, an unindicted co-conspirator was using the Bruno phones for gambling transactions. Charles Cotton, also an unindicted co-conspirator, was believed to be using his telephones and the service station telephones for gambling purposes. . Pursuant to the June order wire interception was initiated on three telephones used by Zalmanowski. The June order also included authorization to tap the two Bruno telephones included in the May 24 order. The Bruno telephones are the telephones involved in the “bootleg phone” issue. See notes 13-17 infra, and accompanying text. . A “bootleg” telephone is an illegally installed extension connected to a telephone line not listed to the owner of the illegal extension. Its purpose is to avoid electronic surveillance by using a telephone line which authorities would not suspect is being used for criminal activity. . The Government argues that only appellant Zalmanowski has standing to raise this contention. In light of our disposition of the issues involved and the Government’s concession of Zalmanowski’s standing, we need not decide the issue of standing with respect to the other appellants. Irrespective of the other appellants’ standing, we would be required to decide this issue on the merits. See Scott v. United States, 436 U.S. 128, 135-36 n. 10, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); California Bankers Assn. v. Shultz, 416 U.S. 21, 44-45, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); Doe v. Bolton, 410 U.S. 179, 189, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). See also Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). While Zalmanowski only leased the 1976 Lincoln Continental, we see no distinction of a constitutional dimension between owning and leasing an automobile for" }, { "docid": "10300261", "title": "", "text": "the interception of nonpertinent conversations. Defendant Frank Manzo has standing to raise a mini mization challenge to these surveillances. See United States v. Fury, 554 F.2d 522, 526 (2d Cir.1977) (minimization claim can be raised only by one with a privacy interest in the place of surveillance), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978). Defendants contend that the agents intercepting conversations through the bugs of the Manzo home engaged in “live monitoring,” which is the practice of listening to conversations without recording them. Defendants also point to several allegedly improper interceptions as evidence of a general disregard of both Title III, 18 U.S.C. §§ 2510-2520, and of the terms of the court orders permitting the surveillance. They seek suppression of all fruits of the bugs (which would, they allege, include the wiretap and its fruits) or, in the alternative, a hearing to further investigate their minimization claims. 18 U.S.C. § 2518(5) provides, in pertinent part: Every order and extension thereof shall contain a provision that the authorization to intercept ... shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter In addition, the orders authorizing the bugs each contained the following provision: [N]o interception of oral communications shall occur during periods when it is determined that none of the subjects of this Order ... are at the above described premises, and ... no interception of oral communications shall take place, even when [the subjects] are at the above-described premises, if the conversation is non-criminal in nature. “[Determining the adequacy of minimization measures ‘requires an evaluation of the reasonableness of the actual interceptions in light of the purpose of the wiretap and the totality of the circumstances before any inquiry is made into the subjective intent of the agents conducting the surveillance.’ ” United States v. Ianniello, 621 F.Supp. 1455, 1469 (S.D.N.Y.1985) (quoting Scott v. United States, 436 U.S. 128, 131, 98 S.Ct. 1717, 1720, 56 L.Ed.2d 168 (1978)). Courts have isolated several factors in assessing the reasonableness of minimization efforts. For example, minimization" }, { "docid": "23255479", "title": "", "text": "(1979); United States v. Bailey, 607 F.2d 237, 240-41 (9th Cir.1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980); United States v. Martin, 599 F.2d 880, 883-84 (9th Cir.1979); United States v. Frederickson, 581 F.2d 711, 713 (8th Cir.1978) (per curiam); United States v. Ford, 553 F.2d 146, 152-70 (D.C.Cir.1977); United States v. Agrusa, 541 F.2d 690, 696-98 (8th Cir.1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977); United States v. Feldman, 535 F.2d 1175, 1181 (9th Cir.), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976); United States v. Kirk, 534 F.2d 1262, 1273 (8th Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1977); United States v. Civella, 533 F.2d 1395, 1399 (8th Cir.1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1977). . 18 U.S.C. § 2517(5) provides: (5) When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable. . 18 U.S.C. § 2517(3) provides: . Appellant has suggested no other violation of § 2518. . 18 U.S.C. § 1955 provides in relevant part: § 1955. Prohibition of illegal gambling businesses (a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both. (b) As used in this section— (1) “illegal gambling business” means a gambling business which— (1) is a violation" }, { "docid": "18438687", "title": "", "text": "to which any aggrieved party may object. This argument fails because the statutory minimization requirement is a necessary concomitant of every surveillance order. 28 U.S.C. § 2518(5). Assuming the greater precision of a minimization requirement in the order at issue, the more stringent requirements do not confer additional rights upon those with no privacy interest in the place of surveillance. This Circuit has held consistently that a minimization claim, whether based upon § 2518(5) or the order itself, may be raised only by one with a privacy interest in the place of surveillance. Fury, supra; Poeta, supra. Merely being an aggrieved party does not confer standing to raise a challenge based on minimization. 4. Sealing Massino and Vitale also claim that the tapes of surveillance were not sealed “immediately” as required by 18 U.S.C. § 2518(8)(a). The statute states: “Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.” Id. The purpose of this judicial scrutiny throughout the entire process of interception to insure the accuracy of the tapes and to prevent the risk of any tampering or distortion of such powerful evidence. See generally United States v. Gigante, 538 F.2d 502, 505 (2d Cir.1976); United States v. Vasquez, 605 F.2d 1269 (2d Cir.1979). Where sealing is not immediate, the tapes of surveillance will be suppressed if a “satisfactory explanation” for the delay is not provided. Gigante, supra; United States v. McGrath, 622 F.2d 36, 42 (2d Cir.1980). Although not determinative of the justification for delay, factors which have been cited include the length of the delay, Vazquez, supra; United States v. Scafidi 564 F.2d 633, 641 (2d Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); evidence of tampering, Vazquez, supra; Poeta, supra; the time required to prepare the tapes for sealing, United States v. Ricco, 421 F.Supp. 401, 408 (S.D.N.Y.1976), aff’d, 566 F.2d 433 (2d Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978); and whether the defendants were prejudiced" }, { "docid": "8166481", "title": "", "text": "in a chart in the margin. The parties disagree not only as to whether the sealing delays incurred in this case were justified, they disagree as well as to how these delays are to be calculated. We note at the outset that the measurement of a particular sealing delay and the determination of whether that delay requires suppression of a wiretap tape otherwise admissible in a federal trial are matters of federal law. United States v. Sotomayor, 592 F.2d 1219, 1223-26 (2d Cir.), cert. denied, - U.S. ——, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). Cf. United States v. Turner, 558 F.2d 46, 49 (2d Cir. 1977) (“This is a federal prosecution, and federal law determines whether suppression is appropri ate.”). Thus, tapes sealed in compliance with the federal standards are admissible in federal court regardless of whether under applicable state law the tapes have been properly sealed. Under federal law, sealing delays are to be measured from the termination date of the continuous period of interception of a given telephone, regardless of the number or length of judicial orders that have been issued to authorize that surveillance. United States v. Scafidi, 564 F.2d 633, 641 (2d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Fury, 554 F.2d 522, 533 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977). Section 2518(5), which permits the issuance of 30-day orders and 30-day extensions, places no limit on the number of orders or extensions that may be issued to authorize continuation of a given interception, provided, of course, that all statutory conditions are met. Therefore, the duration of “the period of the order, or extensions thereof,” will depend in each case on the authorizing judge’s determination of the length of time interception is justified. And it is only the “expiration” of this “period of the order, or extensions thereof,” that triggers the sealing requirement of § 2518(8)(a). Sotomayor turned on the distinction “between procedures governing the interception of wiretap evidence and those governing the preservation of such evidence after" }, { "docid": "15464812", "title": "", "text": "devices must be expressly approved in the court order authorizing the interception itself. Application of the United States, 563 F.2d 637 (4th Cir. 1977). See also United States v. Agrusa, 541 F.2d 690, 696 & n. 13 (8th Cir. 1976), cert. den. 429 U.S. 1045, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977) (approving order with express approval of surreptitious entry and noting that the issue becomes “much more difficult” without such express authorization). I would not go so far, however, as the District of Columbia circuit apparently has in requiring two search warrants. United States v. Ford, 180 U.S.App.D.C. 1, 553 F.2d 146 (1977). I would instead join the fourth and eighth circuits in allowing both the seizure of the conversation and the entry to install the listening devices to be approved in one court order. Since the order in this cause did not expressly authorize surreptitious entry, I concur in the result affirming the district court’s suppression order. Although authorization for surreptitious entry is arguably implicit in a court order permitting installation of a listening device in a private office (see United States v. Scafidi, 564 F.2d 633 (2d Cir. 1977), cert. den. 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Dalia, 575 F.2d 1344 (3d Cir. 1978), cert. granted, - U.S. -, 99 S.Ct. 78, 58 L.Ed.2d 108), I believe that such intrusive governmental action should require express advance approval. Searches are generally considered per se unreasonable unless expressly authorized in advance by a search warrant. No less should be required where an entry is a discrete part of a prolonged invasion of the subject’s privacy. I agree with Part III of Judge Merritt’s opinion concluding that federal judges derive their power to issue search warrants exclusively from statutes and that any power to order surreptitious entry must similarly be derived from a statute. I strongly disagree, however, with Part II of Judge Merritt’s opinion which concludes that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 does not contain sufficient statutory authorization for surrepti tious entry to install" }, { "docid": "15464810", "title": "", "text": "U.S. 864, 94 S.Ct. 39, 38 L.Ed.2d 84 (1973). . Sabbath v. United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). . 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). . United States v. Chadwick, 433 U.S. 1, 11 n. 6, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). . United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”). See Lasson, supra note 27, at 51-78. . As Mr. Justice Jackson wrote, concurring in McDonald v. United States, 335 U.S. 451, 460-461, 69 S.Ct. 191, 196, 93 L.Ed. 153 (1948): Many homeowners in this crime-beset city doubtless are armed. When a woman see a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot. A plea of justifiable homicide might result awkwardly for enforcement officers. But an officer seeing a gun being drawn on him might shoot first. . 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). . Id. at 179, 98 S.Ct. at 376. . Id. at 175 n. 23, 98 S.Ct. 364. . United States v. Scafidi, 564 F.2d 633 (1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978). . United States v. Dalia, 575 F.2d 1344 (1978), cert. granted, - U.S. -, 99 S.Ct. 78, 58 L.Ed.2d 108. . Application of United States, 563 F.2d 637 (1977). . United States v. Agrusa, 541 F.2d 690 (1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977). . United States v. Ford, 180 U.S.App.D.C. 1, 553 F.2d 146 (1977). - 541 F.2d at 698. . 541 F.2d at 704. CELEBREZZE, Circuit Judge, concurring in the result. I concur in the judgment of affirmance reached in Judge Merritt’s opinion for the court but I do not concur in the reasoning employed therein. I would follow the fourth circuit and hold that surreptitious entry to install electronic listening" }, { "docid": "1317815", "title": "", "text": "owner of the illegal extension. Its purpose is to avoid electronic surveillance by using a telephone line which authorities would not suspect is being used for criminal activity. . The Government argues that only appellant Zalmanowski has standing to raise this contention. In light of our disposition of the issues involved and the Government’s concession of Zalmanowski’s standing, we need not decide the issue of standing with respect to the other appellants. Irrespective of the other appellants’ standing, we would be required to decide this issue on the merits. See Scott v. United States, 436 U.S. 128, 135-36 n. 10, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); California Bankers Assn. v. Shultz, 416 U.S. 21, 44-45, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); Doe v. Bolton, 410 U.S. 179, 189, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). See also Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). While Zalmanowski only leased the 1976 Lincoln Continental, we see no distinction of a constitutional dimension between owning and leasing an automobile for purposes of standing upon the facts of this case. . See United States v. Finazzo, 583 F.2d 837 (6th Cir. 1978), vacated and remanded, --- U.S. ---, 99 S.Ct. 2047, 60 L.Ed.2d 657 (1979); United States v. Santora, 583 F.2d 453 (9th Cir. 1978), vacated and remanded, --- U.S. ---, 99 S.Ct. 2155, 60 L.Ed.2d 1041 (1979); United States v. Scafidi, 564 F.2d 633 (2d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Ford, 180 U.S.App.D.C. 1, 553 F.2d 146 (D.C.Cir. 1977); United States v. Agrusa, 541 F.2d 690 (8th Cir. 1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977). . U.S.C. § 2518(5) provides in pertinent part: Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in" }, { "docid": "1413356", "title": "", "text": "obtained” through an interception; (3) “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried”; and (4) probable cause exists to believe that the communication facility sought to be wiretapped “[is] being used, or [is] about to be used, in connection with the commission of [the] offense.” Id. § 2518(3)(a-d); see United States v. Donovan, 429 U.S. 413, 435, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). The determination that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(3)(c), is referred to as the “necessity requirement,” and it is the “keystone of congressional regulation of electronic eavesdropping.” United States v. Williams, 580 F.2d 578, 587-588 (D.C.Cir.1978). The wiretapping statute also requires that “[e]very [wiretap] order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable [and] shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception. ...” 18 U.S.C. § 2518(5). This is referred to as the “minimization requirement.” Although “[t]he statute does not forbid the interception of all nonrelevant conversations,” the government must make reasonable efforts to “minimize” the interception of such conversations. Scott v. United States, 436 U.S. 128, 139-40, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). The statute also provides that an order authorizing an interception cannot extend “for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days.” 18 U.S.C. § 2518(5). The wiretap statute provides that “no part of the contents of [intercepted] communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding ... if the disclosure of that information would be in violation of this chapter.” Id. § 2515. The “aggrieved person” may move to suppress the introduction of wiretap evidence or its fruits if “the communication was unlawfully intercepted,” the “order of authorization or approval under which it was" }, { "docid": "23660796", "title": "", "text": "authorized surveillance. Section 2518(1) details the information required to be set forth in a wiretap application. Section 2518(l)(b)(iv) calls for “the identity of the person, if known, committing the offense and whose communications are to be intercepted.” (Emphasis added). Similarly, under § 2518(4)(a) the order authorizing the interception must specify “the identity of the person, if known, whose communications are to be intercepted.” (Emphasis added). . The language of both sections, therefore, anticipates interception of calls of people whose identities are not known at the time of the application and order. “The clear implication of this language is that when there is probable cause to believe that a particular telephone is being used to commit an offense but no particular person is identi- fiable, a wire interception order may, nevertheless, properly issue under the statute.” United States v. Kahn, 415 U.S. 143, 157, 94 S.Ct. 977, 985, 39 L.Ed.2d 225 (1974). Innocent parties are protected from unreasonable surveillance by the requirement contained in § 2518(5) that surveillance “shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception * * See Scott v. United States, 436 U.S. 128, 130-31, 98 S.Ct. 1717, 1719-20, 56 L.Ed.2d 168 (1978). Id. 751 F.2d at 470 (parallel citations omitted). In view of Figueroa, Scopo’s claim of overbreadth is denied. 4. Timeliness of Tape Sealing Scopo argues that the government failed to seal the tapes in a timely fashion. Under 18 U.S.C. § 2518(8)(a), recordings made pursuant to authorization of electronic surveillance are admissible as evidence as long as they were sealed at the conclusion of one continuous period of surveillance, including all extensions of the original order. Vazquez, 605 F.2d at 1276; United States v. Sotomayor, 592 F.2d 1219, 1225-26 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 268 (1979). Where the interception is of the same premises, substantially the same persons, and for the same purpose, there is only one period of electronic surveillance “regardless of the number or length of judicial orders that have been issued to authorize that surveillance.”" }, { "docid": "23255478", "title": "", "text": "We observed: “While this conclusion may well be correct, there are obvious limits to the extent which ‘common sense and experience’ — insofar as this consists of knowledge beyond the scope of the record in a particular case — can substitute for proof at a criminal trial.\" Id. at 1382. In United States v. Griffin, 525 F.2d 710 (1st Cir.1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1414, 47 L.Ed.2d 351 (1976), the issue was whether the government had proven that defendant knew of the court order that he was charged with intentionally obstructing and impeding pursuant to 18 U.S.C. § 1509. Defendant did not take the stand and there was no direct evidence of his actual knowledge. We held: “absent evidence from which to infer awareness of the order by the defendant, we must find that the government did not make out its case.” Id. at 713. . The following cases have discussed various constitutional aspects of the Act: Dalia v. United States, 441 U.S. 238, 254-59, 99 S.Ct. 1682, 1691-1694, 60 L.Ed.2d 177 (1979); United States v. Bailey, 607 F.2d 237, 240-41 (9th Cir.1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980); United States v. Martin, 599 F.2d 880, 883-84 (9th Cir.1979); United States v. Frederickson, 581 F.2d 711, 713 (8th Cir.1978) (per curiam); United States v. Ford, 553 F.2d 146, 152-70 (D.C.Cir.1977); United States v. Agrusa, 541 F.2d 690, 696-98 (8th Cir.1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977); United States v. Feldman, 535 F.2d 1175, 1181 (9th Cir.), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976); United States v. Kirk, 534 F.2d 1262, 1273 (8th Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1977); United States v. Civella, 533 F.2d 1395, 1399 (8th Cir.1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1977). . 18 U.S.C. § 2517(5) provides: (5) When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating" }, { "docid": "10089580", "title": "", "text": "be unlikely to succeed if tried”; and (4) probable cause exists to believe that the communication facility sought to be wiretapped “[is] being used, or [is] about to be used, in connection with the commission of [the] offense.” Id. § 2518(3)(a)-(d); see also United States v. Donovan, 429 U.S. 413, 435, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). The determination that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(3)(c), is referred to as the “necessity requirement,” which is the “keystone of congressional regulation of electronic eavesdropping.” United States v. Williams, 580 F.2d 578, 587-88 (D.C.Cir.1978). The statute also requires that “[e]very [wiretap] order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable [and] shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.... ” 18 U.S.C. § 2518(5). This is referred to as the “minimization requirement.” Although “[t]he statute does not forbid the interception of all non-relevant conversations,” the government must make reasonable efforts to “minimize” the interception of such conversations. Scott v. United States, 436 U.S. 128, 139-40, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). The statute also provides that an order authorizing an interception cannot extend “for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days.” 18 U.S.C. § 2518(5). Furthermore, the statute provides that “no part of the contents of [intercepted] communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding ... if the disclosure of that information would be in violation of this chapter.” Id. § 2515. Any “aggrieved person” may move to suppress the introduction of wiretap evidence or its fruits if “the communication was unlawfully intercepted,” the “order of au thorization or approval under which it was intercepted is insufficient on its face,” or if “the interception was not made in conformity with the order" }, { "docid": "1317816", "title": "", "text": "purposes of standing upon the facts of this case. . See United States v. Finazzo, 583 F.2d 837 (6th Cir. 1978), vacated and remanded, --- U.S. ---, 99 S.Ct. 2047, 60 L.Ed.2d 657 (1979); United States v. Santora, 583 F.2d 453 (9th Cir. 1978), vacated and remanded, --- U.S. ---, 99 S.Ct. 2155, 60 L.Ed.2d 1041 (1979); United States v. Scafidi, 564 F.2d 633 (2d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Ford, 180 U.S.App.D.C. 1, 553 F.2d 146 (D.C.Cir. 1977); United States v. Agrusa, 541 F.2d 690 (8th Cir. 1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977). . U.S.C. § 2518(5) provides in pertinent part: Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days. . “This is not to say, of course, that the question of motive plays absolutely no part in the suppression inquiry. On occasion, the motive with which the officer conducts an illegal search may have some relevance in determining the propriety of applying the exclusionary rule.” Scott v. United States, 436 U.S. 128, 139 n. 13, 98 S.Ct. 1717, 1724 n. 13, 56 L.Ed.2d 168 (1978). But the assessment and use of motive is irrelevant to our analysis of whether monitoring agents violated minimization requirements. Id. . It is well settled that in seeking suppression of evidence the burden of proof is upon the defendant to display a violation of some constitutional or statutory right justifying suppression. In the instant case appellants contend that the device used in Zalmanowski’s automobile was such as to allow the “whole world” to overhear the conversation. Appellants did not present any evidence to the district court that any member of the public actually overheard any conversations taking place in the automobile. Appellants have attempted" }, { "docid": "10300262", "title": "", "text": "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter In addition, the orders authorizing the bugs each contained the following provision: [N]o interception of oral communications shall occur during periods when it is determined that none of the subjects of this Order ... are at the above described premises, and ... no interception of oral communications shall take place, even when [the subjects] are at the above-described premises, if the conversation is non-criminal in nature. “[Determining the adequacy of minimization measures ‘requires an evaluation of the reasonableness of the actual interceptions in light of the purpose of the wiretap and the totality of the circumstances before any inquiry is made into the subjective intent of the agents conducting the surveillance.’ ” United States v. Ianniello, 621 F.Supp. 1455, 1469 (S.D.N.Y.1985) (quoting Scott v. United States, 436 U.S. 128, 131, 98 S.Ct. 1717, 1720, 56 L.Ed.2d 168 (1978)). Courts have isolated several factors in assessing the reasonableness of minimization efforts. For example, minimization may be more difficult, and more extensive surveillance may therefore be permitted, if: 1) the investigation focuses on a widespread conspiracy, see Scott v. United States, supra, 436 U.S. at 140, 98 S.Ct. at 1724; United States v. Napolitano, 552 F.Supp. 465, 476 (S.D.N.Y.1982); 2) the nature of the conversations or the alleged crimes makes it difficult to determine pertinence, see United States v. Hinton, 543 F.2d 1002, 1012 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976); United States v. Lilla, 534 F.Supp. 1247, 1267 (N.D.N.Y.1982), rev’d in part on other grounds, 699 F.2d 99 (2d Cir. 1983); United States v. Bynum, 360 F.Supp. 400, 410 (S.D.N.Y.), aff'd, 485 F.2d 490 (2d Cir.1973), vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974); or 3) the targets use jargon or code words or speak in a foreign language, see United States v. Hinton, supra, 543 F.2d at 1012; United States v. Lilla, supra, 534 F.Supp. at 1268; United States v. Cale, 508 F.Supp. 1038, 1041" }, { "docid": "12805973", "title": "", "text": "review of legal rulings and mixed questions of law and fact is plenary. Id. 18 U.S.C. § 2518(5) requires as follows: “Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.” The interception application and order in this case did include a plan to minimize interceptions, as Hull acknowledges. Nonetheless, because some of the intercepted conversations were between Hull and his various girlfriends or Hull and commercial businesses, and because the subject matter included sexual discussions, Hull alleges a failure to minimize in practice. We note, however, that none of the calls Hull labels as “non-pertinent” were played for the jury. Our inquiry is on the “reasonableness” of minimization efforts, under the totality of the circumstances. Scott v. United States, 436 U.S. 128, 140, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); see also United States v. Armocida, 515 F.2d 49 (3d Cir.1975). We agree with the District Court that when investigating a wide-ranging conspiracy between parties known for their penchant for secrecy, broader interceptions may be warranted. See United States v. Adams, 759 F.2d 1099, 1115 (3d Cir.1985); Scott, 436 U.S. at 140, 98 S.Ct. 1717 (upholding uninterrupted interceptions in drug conspiracy case). The mere number of intercepted, but non-pertinent, calls is not dispositive. Adams, 759 F.2d at 1115; see also id. (“Appellant also can demonstrate no pattern to the interception of non-pertinent calls. Because of the variety of voices and transactions involved, the government’s efforts at minimizing non-pertinent conversations was acceptable.”). “The statute does not forbid the interception of all nonrelevant conversations.” Scott, 436 U.S. at 140, 98 S.Ct. 1717. Given, for example, the nature of the case and circumstances known to the agents during the interceptions, we discern no error in the District Court’s refusal to suppress the wiretap interceptions on the ground of failure to minimize. VI. Finally," }, { "docid": "15464811", "title": "", "text": "being drawn on him might shoot first. . 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). . Id. at 179, 98 S.Ct. at 376. . Id. at 175 n. 23, 98 S.Ct. 364. . United States v. Scafidi, 564 F.2d 633 (1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978). . United States v. Dalia, 575 F.2d 1344 (1978), cert. granted, - U.S. -, 99 S.Ct. 78, 58 L.Ed.2d 108. . Application of United States, 563 F.2d 637 (1977). . United States v. Agrusa, 541 F.2d 690 (1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977). . United States v. Ford, 180 U.S.App.D.C. 1, 553 F.2d 146 (1977). - 541 F.2d at 698. . 541 F.2d at 704. CELEBREZZE, Circuit Judge, concurring in the result. I concur in the judgment of affirmance reached in Judge Merritt’s opinion for the court but I do not concur in the reasoning employed therein. I would follow the fourth circuit and hold that surreptitious entry to install electronic listening devices must be expressly approved in the court order authorizing the interception itself. Application of the United States, 563 F.2d 637 (4th Cir. 1977). See also United States v. Agrusa, 541 F.2d 690, 696 & n. 13 (8th Cir. 1976), cert. den. 429 U.S. 1045, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977) (approving order with express approval of surreptitious entry and noting that the issue becomes “much more difficult” without such express authorization). I would not go so far, however, as the District of Columbia circuit apparently has in requiring two search warrants. United States v. Ford, 180 U.S.App.D.C. 1, 553 F.2d 146 (1977). I would instead join the fourth and eighth circuits in allowing both the seizure of the conversation and the entry to install the listening devices to be approved in one court order. Since the order in this cause did not expressly authorize surreptitious entry, I concur in the result affirming the district court’s suppression order. Although authorization for surreptitious entry is arguably implicit in a court order permitting installation of a" }, { "docid": "23660797", "title": "", "text": "to minimize the interception of communications not otherwise subject to interception * * See Scott v. United States, 436 U.S. 128, 130-31, 98 S.Ct. 1717, 1719-20, 56 L.Ed.2d 168 (1978). Id. 751 F.2d at 470 (parallel citations omitted). In view of Figueroa, Scopo’s claim of overbreadth is denied. 4. Timeliness of Tape Sealing Scopo argues that the government failed to seal the tapes in a timely fashion. Under 18 U.S.C. § 2518(8)(a), recordings made pursuant to authorization of electronic surveillance are admissible as evidence as long as they were sealed at the conclusion of one continuous period of surveillance, including all extensions of the original order. Vazquez, 605 F.2d at 1276; United States v. Sotomayor, 592 F.2d 1219, 1225-26 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 268 (1979). Where the interception is of the same premises, substantially the same persons, and for the same purpose, there is only one period of electronic surveillance “regardless of the number or length of judicial orders that have been issued to authorize that surveillance.” Vazquez, 605 F.2d at 1276; accord United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); Fury, 554 F.2d at 533. Scopo concedes that there was one continuous period of interception and that the government was not required by law to seal the tapes until the end of that period. Nevertheless, Scopo contends that since the government followed the more prudent course of sealing the tapes in approximately thirty-day intervals, the government assumed an obligation to seal all the tapes in thirty-day intervals. Such an obligation would likely discourage the government from periodic sealing during the course of a lengthy investigation, a practice that is designed to insure the privacy of targets and subjects. Therefore, this Court declines to compel the government to assume such an obligation. Even if Scopo were correct that the government was required to seal the tapes at thirty-day intervals, delays of three or four days in sealing the tapes are excusable. Short delays of this kind have rarely" }, { "docid": "735453", "title": "", "text": "shall be made available to the judge issuing such order and sealed under his directions____ The presence of the seal provided for in this subsection, or a satisfactory explanation of the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or the evidence derived therefrom. . See Government’s Memorandum of Law, at 67. . United States v. Gigante, 538 F.2d 502 (2d Cir.1976). . S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad.News 2112, 2193. . See Fed.R.Evid. 901. . Title III requires that every order authorizing or extending the authorization of electronic surveillance “shall contain a provision that the authorization to intercept ... shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.” 18 U.S.C. § 2518(5). The orders issued by Judge Tenney conformed to this requirement. . Affidavit of Brian Taylor, 8/21/85, at 6. . Scott v. United States, 436 U.S. 128, 131, 98 S.Ct. 1717, 1720, 56 L.Ed.2d 168 (1978). . 436 U.S. at 140, 98 S.Ct. at 1725. . Affidavit of Brian Taylor, 8/21/85, at 8. . Id. at 8-10. The conduct of the investigating agents in this case may usefully be compared to that upheld by the Supreme Court in Scott, where the agents intercepted the full content of \"virtually all” phone calls made by nine individuals using a single telephone for a one-month period without any attempt at minimization. 436 U.S. at 132, 98 S.Ct. at 1720. . Affidavit of Brian Taylor, 8/21/85, Ex. B, at 1. . See United States v. Rizzo, 491 F.2d 215, 217 n. 7 (2d Cir.), cert.denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 (1974). . See United States v. Cirillo, 499 F.2d 872, 880-81 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974); United States v. Ramirez, 602 F.Supp. 783, 791 (S.D.N.Y.1985); United States v. Baker, 443 F.Supp. 526, 531 (S.D.N.Y.1977). . Affidavit of Brian Taylor, 8/21/85, Ex. B, at 2. . Affidavit" } ]

[ { "docid": "10789762", "title": "", "text": "such damages may not be awarded unless the court determines that the employer was not acting in good faith. This contention is based on the interrelationship between the ADEA and two other federal statutes. Section 7(b) of the ADEA, 29 U.S.C. § 626(b) (1976), incorporates the “powers, remedies, and procedures” of the Fair Labor Standards Act (FLSA), as set forth in FLSA §§ 11(b), 16(bHe), and 17, 29 U.S.C. §§ 211(b), 216(b)-(e), and 217 (1976). As enacted, § 16(b) of the FLSA had mandated awards of liquidated damages, equal in amount to wages due, but Congress ameliorated this requirement in 1947 by providing, in § 11 of the Portal-to-Portal Act (PPA), 29 U.S.C. § 260 (1976), that in an FLSA action the court has discretion to disallow all or part of the liquidated damages if it finds that the employer acted in “good faith.” Heublein contends that § 7(b) of the ADEA, by incorporating FLSA procedures, also incorporates this procedural aspect of the PPA. We disagree. In Lorillard v. Pons, 434 U.S. 575,98 S.Ct. 866, 55 L.Ed.2d 40 (1978), the Supreme Court pointedly observed that the ADEA selectively adopts only some of the procedural changes that the PPA made applicable to the FLSA. Id. at 581-82 n.8. As the Court noted, the ADEA, in § 7(e), 29 U.S.C. § 626(e) (1976), specifically incorporates §§ 6 and 10 of the PPA, 29 U.S.C. §§ 255 and 259 (1976) (concerning statute of limitations and reliance on agency rulings), but not § 11, 29 U.S.C. § 260 (1976), the liquidated damages provision. Moreover, in enacting the ADEA, Congress departed from the FLSA procedure by adopting “willfulness” as an element of liability for liquidated damages, and by committing the issue of the employer’s, state of mind to the trier of fact. We reject Heublein’s contention, agreeing with the three Circuits that have considered the same claim after the Supreme Court’s opinion in Lorillard. Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979)." } ]

[ { "docid": "23700308", "title": "", "text": "U.S.C. § 260 provides in part: [I]f the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title. The ADEA incorporates the enforcement scheme of FLSA by referring specifically to sections 211, 216 and 217; it does not refer to the Portal-to-Portal Act. The Portal-to-Portal Act was enacted sometime before the ADEA. If Congress had intended section 11 of the Act, 29 U.S.C. § 260, to apply in ADEA actions it seems clear that it would also have been specifically incorporated by reference in § 626(b). Nevertheless, several courts have held that section 260 should apply to the ADEA as well as to the FLSA. Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976); Combes v. Griffin Television, Inc., 421 F.Supp. 841 (W.D.Okl.1976). The trial judge in the instant case relied on Hays in applying the defense. The rationale of the courts allowing the defense is that the ADEA should incorporate all of the FLSA remedies. The Hays court also expressed concern over automatically providing for liquidated damages, preferring trial court discretion. 531 F.2d at 1311. At the time of trial, Hays was the only circuit court case that had addressed this issue and the district courts were split. The two most recent cases to consider the issue, noting that Hays is the only appellate authority to the contrary, hold that the good faith defense of § 260 is not available. Wehr v. Burroughs Corp., 619 F.2d 276, 279 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1020 (1st Cir. 1979). Under section 216(b), the applicable FLSA provision, there is no requirement of willfulness as a predicate to an award of liquidated damages. On 'the other hand, the ADEA" }, { "docid": "23001716", "title": "", "text": "a hospital under a job program requirement for obtaining welfare benefits after his unemployment compensation terminated. From December 1977 through July 1979, Sy-vock obtained welding work at two different foundries at lower rates of pay than he had received at Milwaukee Boiler. The plaintiff voluntarily terminated his employment at the first foundry in June 1978, and did not work again until August 1978. Syvock retained his job at the second foundry until shortly before he was hired by the Chicago, Milwaukee, St. Paul, and Pacific Railroad Company to perform repair and maintenance welding beginning August 1979. . Section 11 of the Portal to Portal Act, 29 U.S.C. § 260 (1976), mitigates this result somewhat by stating that liquidated damages need not be paid if the employer shows that his action or omission was in good faith. Section 11 of the Portal to Portal Act was not expressly incorporated into the ADEA and the weight of authority is that no “good faith” showing, as such by the employer is required under the ADEA. E. g., Kelly v. American Standard, Inc., 640 F.2d 974, 981 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276, 279 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1020 (1st Cir. 1979). But see Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976). . In Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981), the Second Circuit appeared to endorse the Wehr standard. It interpreted the Third Circuit’s recklessness standard as requiring a showing that the employer acted with reckless disregard as to whether its conduct was prohibited by the ADEA. Id. at 131 (dicta). . See, e. g., Smith & Leggette, Recent Issues in Litigation Under the Age Discrimination in Employment Act, 41 Ohio St.L.J. 349, 369 (1980). . In Title VII cases alleging disparate treatment under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), “[p]roof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” International Brotherhood of Teamsters v. United" }, { "docid": "3991262", "title": "", "text": "Circuit has accepted NCR’s position, Hedrick v. Hercules, Inc., 658 F.2d 1088 (5th Cir.1981); Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir.1976), while the prevailing weight of authority is to the contrary. Goodman v. Heublein Inc., 645 F.2d 127 (2d Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979). See also, Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665 F.2d 149, 154 and n. 4 (7th Cir.1981); But See Mistretta v. Sandia Corp., 639 F.2d 588, 595 and n. 4 (10th Cir.1980) (While stating that an employer’s good faith renders the award of liquidated damages discretionary, the Tenth Circuit declined to decide whether § 260 had been incorporated into the ADEA). Moreover, this Court finds that the discussion of the Act by the Supreme Court in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), relied upon by the majority of Circuits, precludes acceptance of NCR’s position. In Lorillard v. Pons, the Supreme Court held that a jury trial is available in private actions seeking compensatory damages under the ADEA. In discussing the relation ship between the ADEA and FLSA, the Supreme Court stated: [I]n enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undersirable or inappropriate for incorporation. For example, in construing the enforcement sections of the FLSA, the courts had consistently declared that injunctive relief was not available in suits by private individuals but only in suits by the Secretary.... Congress made plain its decision to follow a different course in the ADEA by expressly permitting “such . .. equitable relief as may be appropriate to effectuate the purposes of [the ADEA] including without limitation judgments compelling employment, reinstatement or promotion” “in any action brought to enforce” the Act. § 7(b), 29 U.S.C. § 626(b) (emphasis added). Similarly, while incorporating into the ADEA the FLSA provisions authorizing awards of liquidated damages, Congress altered the" }, { "docid": "22902837", "title": "", "text": "she reached normal retirement age.” Id. at 1100-01 & n. 8. The only circuit holding to the contrary on this issue did so in a footnote, without explaining why front pay should be foreclosed. Kolb v. Goldring, Inc., 694 F.2d 869, 874-75 & n. 4 (1st Cir.1982) (citing Monroe v. Penn-Dixie Cement Corp., 335 F.Supp. 231, 235 (N.D.Ga.1971)). But see Loeb v. Textron, Inc., 600 F.2d 1003, 1022-23 (1st Cir.1979). The third and tenth circuits have each discussed the arguments for and against an award of front pay, but have not actually decided the issue of its availability. Wehr v. Burroughs Corp., 619 F.2d 276, 283 (3rd Cir.1980); Blim v. Western Electric Co., 731 F.2d 1473, 1479 (10th Cir.1984). We agree with the eighth and ninth circuits, and hold that front pay is an available remedy in appropriate cases brought under the ADEA. While the enforcement provisions of the ADEA were generally modeled after the remedies in the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 211(b), 216, and 217, which were incorporated by reference into the ADEA’s § 626(b), see Lorillard v. Pons, 434 U.S. 575, 577-78, 98 S.Ct. 866, 868-69, 55 L.Ed.2d 40 (1978), congress did more than merely incorporate that statute’s back pay and limited injunctive remedies. It expressly authorized the district courts to grant an ADEA claimant such legal or equitable relief as may be appropriate to effectuate the purposes of [the act], including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts [owing to a person as a result of the violation of the ADEA]. 29 U.S.C. § 626(b). Guided by this broad grant of remedial authority, we have previously encouraged district judges in this circuit to fashion remedies designed to ensure that victims of age discrimination are made whole. Geller v. Markham, 635 F.2d 1027, 1036 (2d Cir. 1980) , cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). We now hold specifically that this language permits a district court, in appropriate circumstances, to award front pay to victims of age discrimination. In many cases involving" }, { "docid": "22844317", "title": "", "text": "55. But we also agree with the district court that it was not a willful violation. If it had been, the plaintiffs would be entitled to an award of liquidated damages equal in amount to their actual damages— or so at least the statutory language indicates. See 29 U.S.C. § 626(b), incorporating by reference section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b). The inference from the language is strengthened by the fact that Congress, some years after enacting the Fair Labor Standards Act, adopted as part of the Portal-to-Portal Pay Act of 1947 a provision allowing courts to make a smaller award of liquidated damages in a suit under section 16(b) if the employer was acting reasonably and in good faith. See 29 U.S.C. § 260. This provision was not incorporated in the Age Discrimination in Employment Act. From this one can argue that the original section 16(b) (now 216(b)) gave the courts no discretion and that by not incorporating the ameliorative provision, section 260, Congress expressed its intention not to allow them that discretion in age discrimination suits either. Against this it can be argued that for all that appears the failure to incorporate section 260 was an oversight, and that in any event there is an element of unjust enrichment in a minimum-wage, child-labor, or maximum-hour case — the sort of ease to which the Fair Labor Standards Act applies — that is not found in most age discrimination cases. Although the Fifth Circuit has held that there is discretion in an age discrimination case to award less than the full amount of liquidated damages provided for in section 216(b), Hays v. Republic Steel Corp., 531 F.2d 1307, 1311-12 (5th Cir.1976); Hedrick v. Hercules, Inc., 658 F.2d 1088, 1095-96 (5th Cir.1981); Elliott v. Group Medical & Surgical Service, supra, 714 F.2d at 558 n. 2, there is contrary authority, see Goodman v. Heublein, Inc., 645 F.2d 127, 129 (2d Cir.1981), and cases cited there, including a Third Circuit case that appears to overrule sub silentio an earlier Third Circuit case that had" }, { "docid": "16927932", "title": "", "text": "maximum amount of liquidated damages allowable. The ADEA provides for the payment of liquidated damages only where there is a wilful violation of the Act. 29 U.S.C. § 626(b). However, this Court in Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976), held that liquidated damages were not automatically payable upon a finding of a wilful violation of the ADEA but rather that a trial judge could consider evidence of the employer’s good faith in determining whether to award liquidated damages. The Hays court reached this conclusion after considering the applicability of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (hereinafter “FLSA”) and Section 11 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 260, (hereinafter “PPA”) to the ADEA. The ADEA provides for enforcement in accordance with the remedies provided in Section 16 of the FLSA, as amended. Section 11 of the PPA provides as follows: ... if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not in violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award an amount thereof not to exceed the amount [of damages awarded to the employee for lost wages and benefits]. 29 U.S.C. § 260. Therefore, as this Court held in Hays, the discretion of a trial judge under Section 11 of the PPA to deny or reduce liquidated damages upon a showing of good faith applies in ADEA cases. 531 F.2d at 1312. This Court has. consistently held that a violation of the FLSA is wilful if the employer is aware that his actions are subject to the FLSA, even though the employer reasonably believed in good faith that his conduct was not in violation of the Act. Hays v. Republic Steel Corp., supra; Brennan v. Heard, 491 F.2d 1 (5th Cir. 1974); Coleman v. Jiffy June Farms Inc., 458 F.2d 1139 (5th Cir.)," }, { "docid": "22821893", "title": "", "text": "in the ADEA parallels Title VII the two statutes are to be construed consistently. . The ADEA provides that “liquidated damages shall be payable only in cases of willful violations of this chapter.” 29 U.S.C. § 626(b). See id. § 216(b) (defining liquidated damages). Within this circuit the above constraint has been construed as permissive. Hence if, after a jury finding of willfulness, the trial court makes a finding that the employer acted in good faith and had reasonable grounds for believing that its actions were not violative of the ADEA, the trial court possesses the discretion to determine the amount, if any, of a liquidated damages award. See Hendrick v. Hercules, Inc., 658 F.2d 1088 (5th Cir.1981); Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir.1976). The trial court here, despite the jury’s specific finding of willfullness, declined to award liquidated damages. Appellees contend that our permissive approach to liquidated damages runs counter to both the policy and underlying legislative history of the ADEA and urges that we join those circuits that have held that upon a finding of willfullness, liquidated damages in the amount of actual damages must be awarded. See Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir.1981); Wehr v. Burroughs, Inc., 619 F.2d 276 (3d Cir.1980); Syrock v. Milwaukee Boiler Mfg. Co., 27 F.E.P. 610 (7th Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981). In the alternative, appellees argue that because of the specific finding that Hospital Service willfully violated the ADEA and because the district court declined to award liquidated damages without making factual findings of good faith, on the record, we must remand for such a determination. Hendrick, supra, is cited as support for this legal theory. In light of the ultimate disposition of the present case we must decline appellees’ offering. Accordingly, we express no view as to whether Hendrick requires a trial court to enter its factual findings on the record in order to support its discretion in this area. Nor do we believe the present facts warrant" }, { "docid": "10489695", "title": "", "text": "Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). . 29 U.S.C. §§ 201-219 (1976). . § 7(b) of the ADEA, 29 U.S.C. § 626(b) incorporates the powers, remedies and procedures of the FLSA as set forth in 29 U.S.C. §§ 211(b), 216(b)-(e) and 217. . Wehr v. Burroughs Corp., 619 F.2d 276, 282 (3d Cir.1980) (“a review of the legislative history of the ADEA and its assimilated acts uncovers nothing helpful on th[e] question [or the meaning of ‘willfulness’].”); Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 154 (7th Cir.1981) (“[n]either the statute nor its legislative history has defined the term ‘willful’ ”). See generally Wehr v. Burroughs Corp., 619 F.2d 276, 279-83 (3d Cir.1980). . Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943) (citing United States v. Murdock, 290 U.S. 389, 394-96, 54 S.Ct. 223, 225-26, 78 L.Ed. 381 (1933)). See also United States v. Benjamin, 328 F.2d 854, 862 (2d Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1361, 12 L.Ed.2d 497 (1964). Cf. Walker v. United States, 192 F.2d 47, 49 (10th Cir. 1951). See Browder v. United States, 312 U.S. 335, 341-42, 61 S.Ct. 599, 602-03, 85 L.Ed. 862 (1941). . See, e.g., Loeb v. Textron, Inc., 600 F.2d 1003, 1020 n. 27 (1st Cir.1980) (act is done willfully if “done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law”) quoting E. Devitt & C. Blackmar, Federal Jury Practice & Instructions § 14.06, at 384 (3d ed. 1977); Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2d Cir.1981) (employer “‘knew’ or showed ‘reckless disregard’ as to whether its conduct was prohibited by ADEA”) (dictum; citation and footnote omitted); Crosland v. Charlotte Eye, Ear and Throat Hospital, 686 F.2d 208, 217 (4th Cir.1982) (“employer acts willfully and subjects himself to [liability for liquidated damages under ADEA] if he knows, or has reason to know, that his conduct is governed by [the Act]”) quoting Spagnuolo v." }, { "docid": "22844318", "title": "", "text": "not to allow them that discretion in age discrimination suits either. Against this it can be argued that for all that appears the failure to incorporate section 260 was an oversight, and that in any event there is an element of unjust enrichment in a minimum-wage, child-labor, or maximum-hour case — the sort of ease to which the Fair Labor Standards Act applies — that is not found in most age discrimination cases. Although the Fifth Circuit has held that there is discretion in an age discrimination case to award less than the full amount of liquidated damages provided for in section 216(b), Hays v. Republic Steel Corp., 531 F.2d 1307, 1311-12 (5th Cir.1976); Hedrick v. Hercules, Inc., 658 F.2d 1088, 1095-96 (5th Cir.1981); Elliott v. Group Medical & Surgical Service, supra, 714 F.2d at 558 n. 2, there is contrary authority, see Goodman v. Heublein, Inc., 645 F.2d 127, 129 (2d Cir.1981), and cases cited there, including a Third Circuit case that appears to overrule sub silentio an earlier Third Circuit case that had followed Hays, the leading Fifth Circuit case. Compare Wehr v. Burroughs Corp., 619 F.2d 276, 279 n. 5 (3d Cir.1980), with Rodriguez v. Taylor, 569 F.2d 1231, 1244 (3d Cir.1977). Two of our cases state, but without any elaboration, that an award of liquidated damages under section 626(b) “essentially doubles” the award for back pay and benefits. Orzel v. City of Wauwatosa Fire Dep’t, supra, 697 F.2d at 757 n. 27; Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 156 (7th Cir.1981). These were observations made in passing, not holdings. The issue (rightly described as unsettled in Schlei & Grossman, Employment Discrimination Law 524 (2d ed. 1983)) is not directly presented in this case. But as we shall see when we come to discuss the issue of prejudgment interest, it has tangential relevance. The County’s violation was not “willful” just because it knew it was forcing the plaintiffs to retire before the age of 70. The plaintiffs must show that the County should have known it was violating the Act. See Orzel, supra, 697" }, { "docid": "23001680", "title": "", "text": "in accordance with the powers, remedies, and procedures provided under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219 (1976), with certain specified exceptions. In contrast to the automatic doubling of damages for violations of the FLSA, 29 U.S.C. § 216(b), section 7(b) of the ADEA, 29 U.S.C. § 626(b) (1976), allows liquidated damages only in the event of willful violations of the Act. If such liquidated damages are allowed, they are equivalent to the amount of back pay and benefits denied the plaintiff by the employer. Neither the statute nor its legislative history has defined the term “willful.” This court has not previously determined the standard for willfulness under 29 U.S.C. § 626(b) (1976). Other courts of appeals have reached divergent interpretations of the term. The First Circuit has defined willfulness to require that the employer’s discriminatory act be voluntary, intentional, and done with specific intent to violate the Act. Loeb v. Textron, Inc., 600 F.2d 1003, 1020 n.27 (1st Cir. 1979). In Wehr v. Burroughs Corp., 619 F.2d 276, 283 (3d Cir. 1980), the court upheld a finding of willfulness on a jury instruction that defined “willful” as action that was deliberate, intentional, and knowing. The Third Circuit went on to add, however, that the instruction placed a higher burden on the plaintiff than was required by the Act: willfulness under 29 U.S.C. § 626(b) (1976) could also be found if the plaintiff proved “that the discharge was precipitated in reckless disregard of the consequences.” Id. (dicta). The court did not specify whether liability under the ADEA constituted the “consequences” to which it referred. The Ninth Circuit, in Kelly v. American Standard, Inc., 640 F.2d 974, 980 (9th Cir. 1981), rejected the “specific intent” approach of the First Circuit because this standard “could haVe the anomalous effect of encouraging employers to know as little as possible about the ADEA so that they would not be liable for liquidated damages.” The Kelly court expressed approval of the Wehr opinion but rejected the Third Circuit’s standard insofar as it equated willfulness with reckless conduct. Id. at 980 n.7. Congress," }, { "docid": "23700309", "title": "", "text": "Steel Corp., 531 F.2d 1307 (5th Cir. 1976); Combes v. Griffin Television, Inc., 421 F.Supp. 841 (W.D.Okl.1976). The trial judge in the instant case relied on Hays in applying the defense. The rationale of the courts allowing the defense is that the ADEA should incorporate all of the FLSA remedies. The Hays court also expressed concern over automatically providing for liquidated damages, preferring trial court discretion. 531 F.2d at 1311. At the time of trial, Hays was the only circuit court case that had addressed this issue and the district courts were split. The two most recent cases to consider the issue, noting that Hays is the only appellate authority to the contrary, hold that the good faith defense of § 260 is not available. Wehr v. Burroughs Corp., 619 F.2d 276, 279 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1020 (1st Cir. 1979). Under section 216(b), the applicable FLSA provision, there is no requirement of willfulness as a predicate to an award of liquidated damages. On 'the other hand, the ADEA requires a finding of willfulness for liquidated damages. 29 U.S.C. § 626(b). The Loeb court reasoned that the “willfulness” requirement specifically added to the ADEA indicates that the good faith defense is not necessary: [Ujnder 29 U.S.C. § 216(b), standing alone, liquidated damages must be awarded once a violation is shown. Section 11 [29 U.S.C. § 260] mitigates this result in FLSA cases [citations]. In ADEA cases, the “willfulness” test serves the same function and renders Section 11 superfluous. 600 F.2d at 1020. The Loeb analysis is supported by the recent Supreme Court decision estab lishing the right to jury trials in ADEA actions. Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). The Court stated that “[although § 7(e) of the ADEA, 29 U.S.C. § 626(e), expressly incorporates §§ 6 and 10 of the Portal-to-Portal Pay Act [29 U.S.C. §§ 255 and 259] ..., the ADEA does not make any reference to § 11, 29 U.S.C. § 260 . ...” We find this reasoning persuasive and hold that the good" }, { "docid": "23079948", "title": "", "text": "framed the jury interrogatories to place the burden on defendant to demonstrate both that plaintiff failed to exercise reasonable diligence to mitigate his damages, and that there was a reasonable likelihood that plaintiff might have found comparable work if he had exercised reasonable diligence. Mitigation was properly a question for the jury, and, as such, was resolved against Burroughs. Finally, we find no error in the district court’s denial of Burrough’s motion for mistrial based on overall prejudice of the Platt testimony. . Title 29 U.S.C. § 260 provides: In any action ... to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title. . The Loeb court reasoned: [W]e do not agree that a specific finding as to defendants’ good faith under Section 11 of the Portal-to-Portal Act is required before liquidated damages may be awarded in an ADEA case. The Supreme Court in comparing the ADEA and the FLSA in Lorillard v. Pons, [434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978)], read the ADEA to permit liquidated damages awards where an ADEA violation is “willful,” 434 U.S. at 581, 98 S.Ct. 866, and noted that, “Although § 7(e) of the ADEA, 29 U.S.C. § 626(e), expressly incorporates §§ 6 and 10 of the Portal-to-Portal Pay Act, 29 U.S.C. §§ 255 and 259, the ADEA does not make any reference to § 11, 29 U.S.C. § 260. 434 U.S. at 581-82 n.8, 98 S.Ct. at 870. This selectivity is strong evidence that Congress did not intend to graft Section 11 onto the ADEA. See id. at 582, 98" }, { "docid": "23001717", "title": "", "text": "v. American Standard, Inc., 640 F.2d 974, 981 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276, 279 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1020 (1st Cir. 1979). But see Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976). . In Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981), the Second Circuit appeared to endorse the Wehr standard. It interpreted the Third Circuit’s recklessness standard as requiring a showing that the employer acted with reckless disregard as to whether its conduct was prohibited by the ADEA. Id. at 131 (dicta). . See, e. g., Smith & Leggette, Recent Issues in Litigation Under the Age Discrimination in Employment Act, 41 Ohio St.L.J. 349, 369 (1980). . In Title VII cases alleging disparate treatment under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), “[p]roof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977). If an inference of discriminatory motive were also crucial to recovery upon a disparate treatment theory under the ADEA, one could conclude that any ADEA violation premised upon disparate treatment is intentional and therefore liquidated damages should be automatic. As stated above, however, we agree with those courts that have allowed a finding of liability under the ADEA without any showing as to the defendant’s state of mind. . See also 113 Cong.Rec. 34,752 (remarks of Rep. Dwyer), 31,254 (remarks of Rep. Javits) (1967); Vazquez v. Eastern Air Lines, Inc., 579 F.2d 107, 112 (1st Cir. 1978); Smith & Leg-gette, Recent Issues in Litigation Under the Age Discrimination in Employment Act, 41 Ohio St.L.J. 349, 371 (1980); Note, The Age Discrimination in Employment Act of 1967, 90 Harv.L.Rev. 380, 383-84 (1976); Note, The Cost of Growing Old: Business Necessity and the Age Discrimination in Employment Act, 88 Yale L.J. 565, 579 (1979) (“Whatever the level of employer awareness, these [stereotyped]" }, { "docid": "10489694", "title": "", "text": "two years plaintiff was ineligible for raises because of his unsatisfactory performance reviews. . Tr. at 272-73.' . EEOC v. Kallir, Philips, Ross, Inc., 420 F.Supp. 919, 923-24 (S.D.N.Y.1976), aff'd on opinion below, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977). . 29 U.S.C. § 216(b) (incorporated by reference in 29 U.S.C. § 262(b)). . 29 U.S.C. § 626(b) (emphasis added). . Congress ameliorated this requirement in 1947 by providing in § 11 of the Portal-to-Portal Act, 29 U.S.C. § 260, that in a FLSA action the court has discretion to disallow all or part of the liquidated damages if it finds that the employer acted in “good faith.” Our Court of Appeals has held “good faith” is not a defense to a liquidated damage claim based upon a “willful” violation of the ADEA. Goodman v. Heublein, Inc., 645 F.2d 127, 129-30 (2d Cir. 1981). See also Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). . 29 U.S.C. §§ 201-219 (1976). . § 7(b) of the ADEA, 29 U.S.C. § 626(b) incorporates the powers, remedies and procedures of the FLSA as set forth in 29 U.S.C. §§ 211(b), 216(b)-(e) and 217. . Wehr v. Burroughs Corp., 619 F.2d 276, 282 (3d Cir.1980) (“a review of the legislative history of the ADEA and its assimilated acts uncovers nothing helpful on th[e] question [or the meaning of ‘willfulness’].”); Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 154 (7th Cir.1981) (“[n]either the statute nor its legislative history has defined the term ‘willful’ ”). See generally Wehr v. Burroughs Corp., 619 F.2d 276, 279-83 (3d Cir.1980). . Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943) (citing United States v. Murdock, 290 U.S. 389, 394-96, 54 S.Ct. 223, 225-26, 78 L.Ed. 381 (1933)). See also United States v. Benjamin, 328 F.2d 854, 862 (2d Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1361, 12 L.Ed.2d" }, { "docid": "10489693", "title": "", "text": "such a formulation. Indeed, the very cases cited by defendant usé the test noted above. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Laugeson v. Anaconda Co., 510 F.2d 307 (6th Cir.1975). See also note 6, supra. . See Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir.1952) (L. Hand, J.). . Tr. at 99. . Tr. at 112. . Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944). See also Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444 (1943); Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 68, 63 S.Ct. 444, 451, 87 L.Ed. 610 (1943). . See Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944); Bevevino v. Saydjari, 574 F.2d 676, 685 (2d Cir. 1978). . This figure represents 6% annual increases in salary for the two years plaintiff was ineligible for raises because of his unsatisfactory performance reviews. . Tr. at 272-73.' . EEOC v. Kallir, Philips, Ross, Inc., 420 F.Supp. 919, 923-24 (S.D.N.Y.1976), aff'd on opinion below, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977). . 29 U.S.C. § 216(b) (incorporated by reference in 29 U.S.C. § 262(b)). . 29 U.S.C. § 626(b) (emphasis added). . Congress ameliorated this requirement in 1947 by providing in § 11 of the Portal-to-Portal Act, 29 U.S.C. § 260, that in a FLSA action the court has discretion to disallow all or part of the liquidated damages if it finds that the employer acted in “good faith.” Our Court of Appeals has held “good faith” is not a defense to a liquidated damage claim based upon a “willful” violation of the ADEA. Goodman v. Heublein, Inc., 645 F.2d 127, 129-30 (2d Cir. 1981). See also Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d" }, { "docid": "3991261", "title": "", "text": "Act of 1947, Congress, dissatisfied with the automatic award of liquidated damages in suits under the FLSA, limited such awards as follows: In any action commenced prior to or on or after May 14, 1947 to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title. 29 U.S.C. § 260. In essence, NCR argues that Congress intended this section to apply in ADEA actions. This Circuit has not heretofore addressed the issue. A review of the case authority from other Circuits reveals that only the Fifth Circuit has accepted NCR’s position, Hedrick v. Hercules, Inc., 658 F.2d 1088 (5th Cir.1981); Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir.1976), while the prevailing weight of authority is to the contrary. Goodman v. Heublein Inc., 645 F.2d 127 (2d Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979). See also, Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665 F.2d 149, 154 and n. 4 (7th Cir.1981); But See Mistretta v. Sandia Corp., 639 F.2d 588, 595 and n. 4 (10th Cir.1980) (While stating that an employer’s good faith renders the award of liquidated damages discretionary, the Tenth Circuit declined to decide whether § 260 had been incorporated into the ADEA). Moreover, this Court finds that the discussion of the Act by the Supreme Court in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), relied upon by the majority of Circuits, precludes acceptance of NCR’s position. In Lorillard" }, { "docid": "5054951", "title": "", "text": "to dismiss plaintiff, while the genuine reason for the dismissal was age discrimination. DISCUSSION A. Damages Recoverable Under the ADEA 1. Liquidated Damages The Age Discrimination in Employment Act provides that in a private action a plaintiff may recover lost wages and liquidated damages in an amount equal to the unpaid wages if the violation is “willful.” 29 U.S.C. § 626(b); Wehr v. Burroughs Corp., 619 F.2d 276, 278 (3d Cir.1980). 2. Compensatory Damages The Third Circuit has ruled that compensatory damages for pain and suffering in the nature of emotional distress are unavailable under the ADEA. Rogers v. Exxon Research Engineering Co., 550 F.2d 834, 842 (3d Cir.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978). Rogers represents settled law in this circuit and we decline plaintiff’s request that the holding of Rogers be reevaluated. 3. Punitive Damages Although the Third Circuit has not explicitly addressed the issue of punitive damages in an action under the ADEA other circuit courts which have given the issue plenary consideration have held that punitive damages are not recoverable under the ADEA. Dean v. American Sec. Ins. Co., 559 F.2d 1036, 1039-40 (5th Cir.1977) (en banc); Walker v. Pettit Const. Co., Inc., 605 F.2d 128, 130 (4th Cir.1979). See also Kelly v. American Standard, Inc., 640 F.2d 974, 979 (9th Cir.1981) (“[t]he award of liquidated damages is in effect a substitution for punitive damages and is intended to deter intentional violations of the ADEA.”). Likewise, courts of the Eastern District of Pennsylvania have rejected the view that the statute contemplates the availability of punitive damages. Boddorff v. Publicker Industries, Inc., 488 F.Supp. 1107, 1113-14 (E.D.Pa.1980); Wagner v. Sperry Univac, Div. of Sperry Rand Corp., 458 F.Supp. 505, 517-18 (E.D.Pa.1978); Platt v. Burroughs Corp., 424 F.Supp. 1329, 1336 (E.D.Pa.1976). The Court concludes that the clear weight of authority precludes, as a matter of law, punitive damages under the ADEA. B. Defamation Claim [4] Plaintiff’s Complaint avers that “[a]s a result of defendants’ actions, ... plaintiff has suffered loss of reputation and humiliation and continues to suffer same.” Complaint 1146. Defendants" }, { "docid": "23079949", "title": "", "text": "damages or award any amount thereof not to exceed the amount specified in section 216 of this title. . The Loeb court reasoned: [W]e do not agree that a specific finding as to defendants’ good faith under Section 11 of the Portal-to-Portal Act is required before liquidated damages may be awarded in an ADEA case. The Supreme Court in comparing the ADEA and the FLSA in Lorillard v. Pons, [434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978)], read the ADEA to permit liquidated damages awards where an ADEA violation is “willful,” 434 U.S. at 581, 98 S.Ct. 866, and noted that, “Although § 7(e) of the ADEA, 29 U.S.C. § 626(e), expressly incorporates §§ 6 and 10 of the Portal-to-Portal Pay Act, 29 U.S.C. §§ 255 and 259, the ADEA does not make any reference to § 11, 29 U.S.C. § 260. 434 U.S. at 581-82 n.8, 98 S.Ct. at 870. This selectivity is strong evidence that Congress did not intend to graft Section 11 onto the ADEA. See id. at 582, 98 S.Ct. 866. The reason is clear: under 29 U.S.C. § 216(b), standing alone, liquidated damages must be awarded once a violation is shown. Section 11 mitigates this result in FLSA cases. Id. at 581 n. 8, 98 S.Ct. 866. In ADEA cases, the “willfulness” test serves the same function and renders Section 11 superfluous. 600 F.2d at 1020 (footnote omitted). By accepting the reasoning of Loeb, we do not follow Hays v. Republic Steel Corp., 531 F.2d 1307, 1310-12 (5th Cir. 1976), which was decided prior to the analysis of limited selective incorporation of Portal-to-Portal Act provisions set forth in Lorillard v. Pons, 434 U.S. 575, 581-82 n.8, 98 S.Ct. 866, 870-871, 55 L.Ed.2d 40 (1978). In Sikora v. American Can Co., 622 F.2d 1116 (3d Cir. 1980) we noted that § 10 of the Portal-to-Portal Act was incorporated into the ADEA. . Working Papers, National Comm, on Reform of Federal Criminal Laws 128 (1970) [hereinafter referred to as Working Papers ]. Professor Lloyd L. Weinreb, commission consultant, summarized the state of federal law relating" }, { "docid": "23156455", "title": "", "text": "the 1974 and 1978 Amendments to the ADEA. . The text of 29 U.S.C. § 626(b) (1976) is reprinted at note 3, supra. . Orzel worked during 1980 as a temporary census taker. He also applied for a job with the U.S. Postal Service but was not hired. . When testimony regarding this reinstatement offer was first introduced at trial, the plaintiff objected under Rule 408 of the Federal Rules of Evidence, claiming that the testimony should be excluded as an offer made in settlement of the litigation. The magistrate acknowledged that the City’s offer of reinstatement was made after commencement of the instant lawsuit, but admitted the testimony as an exception to the exclusionary rule because he deemed it relevant to the issue of mitigation of damages. . An award of liquidated damages under 29 U.S.C. § 626(b) (1976) essentially doubles the plaintiffs recovery of backpay and benefits. Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 151 (7th Cir.1981). . At the time the magistrate issued his decision in the instant case, Syvock had not yet been decided. The magistrate therefore relied upon the standard for willfulness adopted by the Third Circuit in Wehr v. Burroughs Corp., 619 F.2d 276, 280 (3rd Cir.1980), and endorsed by the Ninth Circuit in Kelly v. American Standard, Inc., 640 F.2d 974, 980 (9th Cir.1981). This court, in Syvock, expressed its approval of the reasoning used in both Wehr and Kelly. See Syvock, supra, 665 F.2d at 154-56 & nn. 9-10. . For example, the City Attorney for Wauwatosa testified that, at the request of the City’s employee relations committee, he made various efforts during the early part of 1978 to determine the effect of the 1978 Amendments on the mandatory retirement of local police and firefighters. See Tr. 379-80. Although the City Attorney initially concluded that the amendments did not change the law as it pertained to the mandatory retirement of firefighters and law enforcement personnel, he later rejected this conclusion and advised the City that [i]t appears rather clear that with the 1978 Amendments to the Federal Age Discrimination in" }, { "docid": "1556661", "title": "", "text": "damages, or restoration of pension rights are legal or equitable in nature. As to back pay, the reasoning of the Sixth Circuit Court of Appeals in Morelock v. N. C. R. Corp., 546 F.2d 682 (1976), is persuasive: back pay is actually relinquishment of funds wrongfully withheld, and as such is an integral part of the basic equitable relief of reinstatement. However, the Fourth Circuit Court of Appeals has ruled that, because the ADEA specifically provides for legal and equitable relief, and because ADEA claims are analogous to the legal actions of contract and tort, back pay under the ADEA is monetary and legal relief, involving a right to trial by jury. Pons v. Lorillard, 549 F.2d 950 (1977). The courts are also split over whether liquidated damages are legal or equitable in nature. The majority of the cases holds that liquidated damages under the ADEA are equitable. These cases reason that, although § 7(b) of the ADEA, as printed in 29 U.S.C. § 626(b), provides that the Act is to be enforced in accordance with §§ 16(b) and 17 of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b) and § 217 (providing for back pay and liquidated damages), the original language of § 7(b) of the ADEA, in 81 Stat. 604, refers to FLSA §§ 16(b) and 17 “as amended.” The FLSA was amended in 1947 by the Portal-to-Portal Act, 29 U.S.C. § 260, which provides: if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title. (Emphasis added.) The Portal-to-Portal Act makes the award of liquidated damages under the ADEA wholly discretionary and therefore equitable in nature. Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976);" } ]

[ { "docid": "13825376", "title": "", "text": "in the course of the proceedings, the court ordered sequestration of funds from the respective parts of the railroad system but that procedure made necessary expenditure of so much time and money that the practice was abandoned. The court, however, entered an order providing that all bondholders’ rights should be preserved as if presentment and demand for payment had been made and default in payment had occurred. Our rather narrow question, therefore, is whether the holders of these bonds, adequately secured, protected by income greatly in excess of interest requirements and expressly excluded from the operation of a plan, may, under the circumstances of this case, recover interest upon coupons as a part of their secured indebtedness after the dates of maturity. Though simple in character the question does not lend itself to a too easy solution. As we have seen, these bonds are not subject to, involved in or affected by the reorganization. They bear coupons for interest maturing at stated intervals. The coupons are void of express covenant as to interest after maturity as are likewise the bonds themselves' and the mortgage securing them. The latter provides security for the payment of principal and interest “according to the true intent and meaning” or “tenor” of the bonds and coupons. In these circumstances the bankruptcy court was bound to allow or disallow such interest as the pertinent law makes mandatory. True, the Bankruptcy Act, Section 77, endows the court with power to reduce, modify and extend security of debts if found necessary in order to effectuate a fair and equitable plan of reorganization. It is the purpose of the section that the court shall so reorganize the debtor as to result in no excessively over-capitalized financial structure, in order that income may meet fixed charges and costs of operation. But this power to deal with or modify securities, we think, in no way affects appellants who are no part of the reorganization but constitute secured holders of instruments wholly unaffected thereby. Hence it is improper to say that the bankruptcy court had the power to alter their securities. Indeed," } ]

[ { "docid": "2858008", "title": "", "text": "the claim is secured and the estate is solvent the U.S. Supreme Court has stated, “[sjimple interest on secured claims accruing after the petition was filed was denied unless the security was worth more than the sum of principal and interest due.... But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than the debtor.” (citation omitted). Vanston, 329 U.S. at 164, 67 S.Ct. at 240. See also, Coder v. Arts, 152 F. 943, 950 (8th Cir.1907), affirmed, 213 U.S. 223, 245, 29 5.Ct. 436, 445, 53 L.Ed. 772 (1909); Sexton v. Dreyfus, 219 U.S. 339, 345-46, 31 S.Ct. 256, 257-8, 55 L.Ed. 244 (1911). Thus, interest to the secured creditor was awarded at the contract rate in both Coder and Sexton. The weight of historical case law nationally, as well as in this circuit, is that post-petition interest is payable either at the contract rate, at the statutory rate (if a specialized statute establishes a specialized rate of interest for a particular creditor) or, if there is no applicable statute and no rate was contracted for, at the state judgment rate. Judge Clark held in Laymon and Melenyzer that the “legal rate” is the federal judgment rate. As support for his decision he argues that awarding the federal judgment rate across the board assures a ratable distribution, uses federal law to decide a federal issue, “affords all affected parties a predictable, easily ascertainable, nationally uniform rate and best comports with the analytical posture of claims vis-a-vis the federal bankruptcy.” Melenyzer, 143 B.R. at 833. Although Judge Clark has done an extensive analysis of this issue and his reasoning is appealing to this Court, the Johnson case and the weight of prior case law cited hereinabove convinces this Court that, when there was a prepetition contract between the parties that provided for interest, it is that contract rate which should be applied in situations such as these. Here, therefore, FCB is entitled to interest" }, { "docid": "18737106", "title": "", "text": "the entire secured obligation — including the interest on interest. The Court nevertheless denied payment of the latter item. The Court first noted generally: When and under what circumstances federal courts will allow interest on claims against debtors’ estates being administered by them has long been decided by federal law. Cf. Board of Com’rs of Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313; Royal Indemnity Co. v. United States, 313 U.S. 289, 61 S.Ct. 995, 85 L.Ed. 1361. The general rule in bankruptcy and in equity receivership has been that interest on the debtors’ obligations ceases to accrue at the beginning of proceedings. Exaction of interest, where the power of a debtor to pay even his contractual obligations is suspended by law, has been prohibited because it was considered in the nature of a penalty imposed because of delay in prompt payment — a delay necessitate by law if the courts are properly to preserve and protect the estate for the benefit of all interests involved. * * * * * * Simple interest on secured claims accruing after the petition was filed was denied unless the security was worth more than the sum of principal and interest due. Sexton v. Dreyfus, 219 U.S. 339, 346, 31 S.Ct. 256, 258, 55 L.Ed. 244. To allow a secured creditor interest where his security was worth less than the value of his debt was thought to be inequitable to unsecured creditors. ****** But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor. Coder v. Arts, 213 U.S. 223, 245, 29 S.Ct. 436, 445, 53 L.Ed. 772, 16 Ann.Cas. 1008; Sexton v. Dreyfus, supra. See also Johnson v. Norris, 5 Cir., 190 F. 459. [329 U.S. at 163-64, 67 S.Ct. at 241] The Supreme Court in Vanston then considers the particular situation before it: It is manifest that the touchstone of each decision on allowance of interest" }, { "docid": "13474307", "title": "", "text": "from paying any pre-appointment debts. Thereafter the indenture trustee, acting on behalf of the bondholders, declared the entire principal due, because of the court-ordered default on the interest payments, and began accruing interest on the overdue interest. In disallowing the claim for interest on overdue interest, the Supreme Court stated; [W]hen the equity receivership intervened, these interrelated obligations were drastically changed. The obligation to make prompt payment of simple interest coupons was suspended. In fact both Inland [the debtor] and the receiver were ordered by the court not to pay the coupons on the dates they were, on their face, supposed to have been paid. The contingency which might have created a present obligation to pay interest on interest— i. e., a free decision by the debtor that it would not or could not pay simple interest promptly — was prohibited from occurring by order of the court. [LJegal suspension of an obligation to pay is an adequate reason why no added compensation or penalty should be enforced for failure to pay. 329 U.S. at 166-167, 67 S.Ct. at 241-242 (emphasis added). Like the attorney’s fees in Security Mortgage, the interest on unpaid interest in Vanston was an additional liability claimed because of a default by the debtor on his obligations to the creditor. Enforcement of both claims was undertaken after the filing of the respective petitions. The difference in result in these cases may be attributed to the difference between the straight bankruptcy proceeding in Security Mortgage and the reorganization proceeding in Vanston, with its attendant injunction against payments to creditors. The present case is like Vanston but unlike Security Mortgage. Compare In re Black Ranches, Inc., 8 Cir., 1966, 362 F.2d 8; Northtown Threatre Corporation v. Mickelson, 8 Cir., 1955, 226 F.2d 212; United States Trust Co. of New York v. Zelle, 8 Cir., 1951, 191 F.2d 822; with In re Maryvale Community Hospital, Inc., 9 Cir. 1972, 456 F.2d 410; Ruskin v. Griffiths, 2 Cir., 1959, 269 F.2d 827. National Acceptance Company v. Zus-mann, 5 Cir., 1967, 379 F.2d 351, also relied on by the bank, is" }, { "docid": "15526334", "title": "", "text": "creditor from the security proceeds, even though such proceeds are adequate to permit such payment. While this was the specific result reached in the Vanston case, this Court is of the opinion that the legal principle announced in the Van-ston case cannot be limited only to the factual situation where interest upon interest is involved. Rather, the Court there spoke of the duty of the bankruptcy court “to determine how and what claims shall be allowed under equitable principles.” (Emphasis supplied). The Court explained the rule allowing interest to secured creditors out of the security by stating: “But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor. Coder v. Arts, 213 U.S. 223, 245 [29 S.Ct. 436, 53 L.Ed. 772] ; Sexton v. Dreyfus, supra. See also Johnson v. Norris [C.C.A.5], 190 F. 459.” The Court went on to state: “It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor.” The Vanston case, as read and understood by this Court, is authority for the principle that a bankruptcy court, having equity powers, is permitted to exercise some discretion in the allowance of interest to secured creditors after bankruptcy, having due consideration for the facts of each case and after weighing the rights and interests of all creditors. The rule is stated thus in 8A C.J.S. Bankruptcy § 242(8): “§ 242(8). Interest and Fees Interest after bankruptcy. Wtiether interest continues to run after bankruptcy is a federal question. Although there is some authority to the effect that a secured creditor is not entitled to have from his security interest accruing after the filing of the petition in bankruptcy, generally, where a valid and unavoidable lien of a secured creditor secures the payment of both principal and interest, and the security or its proceeds are sufficient for that" }, { "docid": "22690833", "title": "", "text": "be inequitable to unsecured creditors. Thus we recently said: “Since the distribution provided for these bonds on the basis of their mortgage securities is less than the principal amount of their claim, the limitation of their right to share the unmortgaged assets ratably with the unsecured creditors on the basis of principal and interest prior to bankruptcy only is justified under the rule of Ticonic National Bank v. Sprague, 303 U. S. 406.” Group of Institutional Investors v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 318 U. S. 523, 573. But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor. Coder v. Arts, 213 U. S. 223, 245; Sexton v. Dreyfus, supra. See also Johnson v. Norris, 190 F. 459. It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor. See Sexton v. Dreyfus, supra, at 346. That the proceedings before us have moved from equity receivership through § 77B to Chapter X in the wake of statutory change does not make these equitable considerations here inapplicable. A Chapter X or § 77B reorganization court is just as much a court of equity as were its statutory and chancery antecedents. See Consolidated Rock Products Co. v. Du Bois, 312 U. S. 510, 527. In this case, where by order of the court interest was left unpaid, we do not think that imposition of interest on that unpaid interest can be justified by “an application of equitable principles.\" See Dayton v. Stanard, 241 U. S. 588, 590. Prior to the beginning of the equity reeeiver ship, Inland would have never owed interest on interest unless and until it had breached its obligation to pay simple interest promptly — on the date it was due. Before the receivership began, a failure by Inland to pay coupons on" }, { "docid": "2858007", "title": "", "text": "issuing the commission, yet, in case of a surplus left after payment of every debt, such interest shall again revive.” (emphasis added). Johnson, 190 F. at 465. It can be extrapolated from this language that the post-petition interest was most likely calculated at the same rate as the pre-petition interest. In Johnson the Fifth Circuit cites with favor, In re John Osborn’s Sons & Co., 177 F. 184 (2nd Cir.1910), to support its holding. In Osborn’s all the debts arose from the purchase of goods. As such, there was no contractual agreement between the debtor and any creditor for the payment of interest. That Court granted post-petition interest at the state judgment rate on the basis that interest, even without an express agreement to pay it, is an incident to the debt and is recoverable as damages for its detention. The Court found that claims, once filed, were deemed as allowed, unless an objection was received. As allowed claims they were entitled to be treated as judgments, with interest payable at the judgment rate. Where the claim is secured and the estate is solvent the U.S. Supreme Court has stated, “[sjimple interest on secured claims accruing after the petition was filed was denied unless the security was worth more than the sum of principal and interest due.... But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than the debtor.” (citation omitted). Vanston, 329 U.S. at 164, 67 S.Ct. at 240. See also, Coder v. Arts, 152 F. 943, 950 (8th Cir.1907), affirmed, 213 U.S. 223, 245, 29 5.Ct. 436, 445, 53 L.Ed. 772 (1909); Sexton v. Dreyfus, 219 U.S. 339, 345-46, 31 S.Ct. 256, 257-8, 55 L.Ed. 244 (1911). Thus, interest to the secured creditor was awarded at the contract rate in both Coder and Sexton. The weight of historical case law nationally, as well as in this circuit, is that post-petition interest is payable either at the contract rate, at the statutory" }, { "docid": "15526332", "title": "", "text": "after the date of the bankruptcy proceedings. The Court, in allowing interest and attorney fees prior to the institution of the bankruptcy proceedings, but disallowing such interest and attorney fees after the filing of the petition in bankruptcy, relied upon the case of Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946). NAC contends that a secured creditor is entitled to interest on its claim at the rate provided for in its contract with the debtor until the date of payment of the claim if the value of the property securing the debt is sufficient to pay the principal and such interest. As pointed out by NAC, this rule was established by a line of cases prior to the Vanston case. See Coder v. Arts, 213 U.S. 223, 245, 29 S.Ct. 436, 53 L.Ed. 772 (1909); Sexton v. Dreyfus, 219 U.S. 339, 346, 31 S.Ct. 256, 55 L.Ed. 244 (1911); Ticonic National Bank v. Sprague, 303 U.S. 406, 58 S.Ct. 612, 82 L.Ed. 926 (1938); Consolidated Rock Products Co. v. DuBois, 312 U.S. 510, 527, 61 S.Ct. 675, 85 L.Ed. 982 (1941); Institutional Investors v. Chicago, M., St. P. & P., 318 U.S. 523, 546, 63 S.Ct. 727, 87 L.Ed. 959 (1943). It is also contended by NAC that the Vanston case did not change the rule in the Coder, Sexton, and Ticonic cases, but that, as shown by cases subsequent to the Van- stem case, the rule allowing interest to a secured creditor out of the security remains the law applicable to bankruptcy proceedings, including reorganization proceedings. See In re Macomb Trailer Coach, Inc., 200 F.2d 611 (C.C.A.6, 1952); Kagan v. Industrial Washing Machine Corp., 182 F.2d 139 (C.C.A.l, 1950); Palo Alto Mutual Savings & Loan Association v. Williams, 245 F.2d 77 (C.C.A.9, 1957) overruling Beecher v. Leavenworth State Bank, 192 F.2d 10 (C.C.A.9,1951); Eddy v. Prudence Bonds Corp., 165 F.2d 157 (C.C.A.2, 1947). It is the position of NAC that the Vanston case is authority only for the proposition that a bankruptcy court may disallow interest upon interest to a secured" }, { "docid": "23114687", "title": "", "text": "for the claim consists of the bankrupt’s entire property, as in the present case, the damage to the unsecured creditors would be even greater. The secured creditor in such case is not confined to specific property (as in the mortgage situation, for example, where the amount of interest collectible by the mortgagee would be limited to the value of the specific property held as collateral), but the secured claim could accrue post-bankruptcy interest until the entire estate is exhausted. This is precisely the situation which the rule against post-bankruptcy interest is designed to prevent. In Vanston Bondholders Protective Committee v. Green, 1946, 329 U.S. 156, 163, 67 S.Ct. 237, 240, 91 L.Ed. 162, the Supreme Court said with respect to post-bankruptcy interest: “ * * * The general rule in bankruptcy and in equity receivership has been that interest on the debtors’ obligations ceases to accrue at the beginning of proceedings. Exaction of interest, where the power of a debtor to pay even his contractual obligations is suspended by law, has been prohibited because it was considered in the nature of a penalty imposed because of delay in prompt payment — a delay necessitated by law if the courts are properly to preserve and protect the estate for the benefit of all interests involved. * * * ” To allow the Government interest on its tax claim until payment would be to penalize the remaining creditors because of a delay necessitated by law. The reason for the rule against post-bankruptcy interest is not a bit less applicable to the present case than any other. In spite of the strong reasons against allowing post-bankruptcy interest to the secured creditor, even though the value of his security exceeds his claim for both principal and interest, several cases have allowed such interest in certain special situations. We do not find in the decided cases sufficient support for a third general exception. Usually the allowance has been to a mortgagee, in apparent reliance upon Coder v. Arts, 1909, 213 U.S. 223, 245, 29 S.Ct. 436, 53 L.Ed. 772, where the Court, without any discussion," }, { "docid": "10853642", "title": "", "text": "interpret the majority opinion in the Vanston case, it goes further than to merely hold that provisions of a state law authorizing intérest on interest may be disregarded by a Bankruptcy Court if principles of equity in the administration of that Act prompt so doing. It definitely establishes the rule of law that any state statute which is not consistent with principles of equity in the management and distribution of a bankrupt estate under the Bankruptcy Act may be disregarded by the Bankruptcy Court. The trial court did not apply in part and partially disregard the law of New York. It completely discarded the New York statute in fixing the rate of interest which in its judgment was compatible with equity and fairness. In doing so it properly interpreted and applied the rule announced in the Vanston opinion for the following reasons.. The majority opinion in Vanston v. Green, supra, makes it clear that the right to allowance of interest during bankruptcy does not necessarily spring from an authorization therefor by state law, but arises from equitable considerations resulting from the preferential position of secured creditors to general creditors. On that question the court said: Vanston v. Green, supra. 329 U.S. loc. cit. 164, 67 S.Ct. loc. cit. 241: “But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit' payment of this additional interest to the secured creditor rather than to the debtor.” (Citing Coder v. Arts, 213 U.S. 223, 245, 29 S.Ct. 436, 53 L.Ed. 772; Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244. See also Johnson v. Norris, 5 Cir., 190 F. 459.) Vanston Bondholders Protective Committee v. Green further establishes the proposition that in determining the rate of interest to be paid secured creditors during the period of bankruptcy, where no definite rate is provided for in the contractual agreement between the debtor and its creditors, the law of the state of the contract need not be applied under the principles enunciated in Erie Railroad Co. v." }, { "docid": "10853643", "title": "", "text": "from equitable considerations resulting from the preferential position of secured creditors to general creditors. On that question the court said: Vanston v. Green, supra. 329 U.S. loc. cit. 164, 67 S.Ct. loc. cit. 241: “But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit' payment of this additional interest to the secured creditor rather than to the debtor.” (Citing Coder v. Arts, 213 U.S. 223, 245, 29 S.Ct. 436, 53 L.Ed. 772; Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244. See also Johnson v. Norris, 5 Cir., 190 F. 459.) Vanston Bondholders Protective Committee v. Green further establishes the proposition that in determining the rate of interest to be paid secured creditors during the period of bankruptcy, where no definite rate is provided for in the contractual agreement between the debtor and its creditors, the law of the state of the contract need not be applied under the principles enunciated in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. On that question the court said: “In determining what claims are allowable and how a debtor’s assets shall be distributed, a bankrutpcy court does not apply the law of the state where it sits. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, has no such implication. * * * But bankruptcy courts must administer and enforce the Bankruptcy Act as interpreted by this Court in accordance with authority granted by Congress to determine how and what claims shall be allowed under equitable principles.” 329 U.S. loc. cit. 162, 67 S.Ct. loc. cit. 240, 91 L.Ed. 162. ****** “For assuming, arguendo, that the obligation for interest on interest is valid under the law of New York, Kentucky, and the other states having some interest in the indenture transaction, we would still have to decide whether allowance of the claim would be compatible with the policy of the Bankruptcy Act. Cf. Kuehner v. Irving Trust Co., 299 U.S. 445, 451, 57" }, { "docid": "18737107", "title": "", "text": "* * * Simple interest on secured claims accruing after the petition was filed was denied unless the security was worth more than the sum of principal and interest due. Sexton v. Dreyfus, 219 U.S. 339, 346, 31 S.Ct. 256, 258, 55 L.Ed. 244. To allow a secured creditor interest where his security was worth less than the value of his debt was thought to be inequitable to unsecured creditors. ****** But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor. Coder v. Arts, 213 U.S. 223, 245, 29 S.Ct. 436, 445, 53 L.Ed. 772, 16 Ann.Cas. 1008; Sexton v. Dreyfus, supra. See also Johnson v. Norris, 5 Cir., 190 F. 459. [329 U.S. at 163-64, 67 S.Ct. at 241] The Supreme Court in Vanston then considers the particular situation before it: It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor. See Sexton v. Dreyfus, supra, 219 U.S. at page 346, 31 S.Ct. at page 258, 55 L.Ed. 244. * * * * * ik In this case where by order of the court interest was left unpaid, we do not think that imposition of interest on that unpaid interest can be justified by “an application of equitable principles.” See Dayton v. Standard, 241 U.S. 588, 590, 36 S.Ct. 695, 696, 60 L.Ed. 1190. ♦ * * * * * The extra interest covenant may be deemed added compensation for the creditor or, what is more likely, something like a penalty to induce prompt payment of simple interest. In either event, first mortgage bondholders would have been enriched and subordinate creditors would have suffered a corresponding loss, because of a failure to pay when payment had been prohibited by a court order entered for the joint benefit of debtor, creditors, and the public. Such a" }, { "docid": "8309127", "title": "", "text": "The cases decided since the enactment of the Bankruptcy Code do not address the question directly. The Bankruptcy Act which preceded the Code had no specific authorization equivalent to § 506(b). The right of a secured creditor to apply proceeds of sale of secured property to interest accrued after the date of filing in bankruptcy where the proceeds were sufficient to*pay both that interest and the principal indebtedness was established by the United States Supreme Court in Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244, 25 Am.Bankr.Rep. 363 (1911). The Supreme Court further refined that general holding in the case of Vanston Bondholders Protect. Com. v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946). In that Chapter X case which raised issues essentially similar to those in the present case, the court found that interest on unpaid interest for which provision is made by ar mortgage should not be allowed as a claim in proceedings for reorganization of the mortgagor under the Bankruptcy Act. Justice Black for the court stated: It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor. See Sexton v. Dreyfus In this case, where by order of the court interest was left unpaid, we do not think that imposition of interest on that unpaid interest can be justified by “an application of equitable principles.” And he noted finally: The extra interest covenant may be deemed added compensation for the creditor or, what is more likely, something like a penalty to induce prompt payment of simple interest. In either event, first mortgage bondholders would have been enriched and subordinate creditors would have suffered a corresponding loss, because of a failure to pay when payment had been prohibited by a court order entered for the joint benefit of debtor, creditors, and the public. Such a result is not consistent with equitable principles. For legal suspension of an obligation to pay is an adequate reason why no added" }, { "docid": "18737105", "title": "", "text": "the contract rate. This, however, does not settle the issue as to default rates since — as will be developed below— the Supreme Court has held that contractual and other legally-established rights may sometimes conflict with equitable principles of distribution under the bankruptcy laws. SUPREME COURT CASES The Supreme Court affirmed the denial of a contractually-provided right to payment of interest-on-interest to first mortgage bondholders in a reorganization proceeding in the case of Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946). The court in that case noted that payment of such interest, aggregating some $500,-000, would result in “subordinate creditors [receiving] a greatly reduced share in the reorganized corporation” and that even if such interest was valid under state law “we would still have to decide whether allowance of the claim would be compatible with the policy of the Bankruptcy Act.” [329 U.S. at pp. 159 and 162, 67 S.Ct. at pp. 238 and 240]. The collateral property in Vanston was clearly sufficient in value to pay the entire secured obligation — including the interest on interest. The Court nevertheless denied payment of the latter item. The Court first noted generally: When and under what circumstances federal courts will allow interest on claims against debtors’ estates being administered by them has long been decided by federal law. Cf. Board of Com’rs of Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313; Royal Indemnity Co. v. United States, 313 U.S. 289, 61 S.Ct. 995, 85 L.Ed. 1361. The general rule in bankruptcy and in equity receivership has been that interest on the debtors’ obligations ceases to accrue at the beginning of proceedings. Exaction of interest, where the power of a debtor to pay even his contractual obligations is suspended by law, has been prohibited because it was considered in the nature of a penalty imposed because of delay in prompt payment — a delay necessitate by law if the courts are properly to preserve and protect the estate for the benefit of all interests involved. * * *" }, { "docid": "9597686", "title": "", "text": "New York v. Saper, supra, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710. In our opinion, these cases, as well as Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, did not involve the same question which is presented here. Vanston Bondholders Protective Committee v. Green involved interest on interest. Sexton v. Dreyfus involved a question of marshalling. City of New York v. Saper involved interest on tax claims which are not secured obligations. See In re Gotham Can Co., 2 Cir., 48 F.2d 540, and in re Worden, D.C.W.D. Ky., 107 F.Supp. 496, where two of these cases are so distinguished. On the contrary, the rule contended for by appellants was recognized as the correct rule by the Supreme Court in Coder v. Arts, 213 U.S. 223, at page 245, 29 S.Ct. 436, 53 L.Ed. 772. In the opinion in Vanston Bondholders Protective Committee v. Green, supra, 329 U.S. 156, at page 164, 67 S.Ct. at page 240, the Court in stating the general rule said— “'Simple interest on secured claims accruing after the petition was filed was denied unless the security ivas worth more than the sum of principal and interest due.” (Italics added.) Our ruling in favor of the appellants is also in accord with similar rulings in a number of the circuits. Kagan v. Industrial Washing Machine Corp., 1 Cir., 182 F.2d 139, 146; In re Gotham Can Co., supra, 2 Cir., 48 F.2d 540; Eddy v. Prudence Bonds Corp., 2 Cir., 165 F.2d 157, 160; Littleton v. Kincaid, 4 Cir., 179 F.2d 848, 852; Oppenheimer v. Oldham, 5 Cir., 178 F.2d 386; United States v. Paddock,, 5 Cir., 187 F.2d 271, 276; In re Chicago, R. I. & P. Ry. Co., 7 Cir., 155 F.2d 889, 892, reversed on other grounds Fleming v. Traphagen, 329 U.S. 686; 67 S.Ct. 365, 91, L.Ed. 602; Wilson v. Dewey, 8 Cir., 133 F.2d 962; In re Deep Rock Oil Corp., 10 Cir., 113 F.2d 266, 269. See In re Worden, supra, D.C.W.D.Ky., 107 F.Supp. 496; In re Fabacher, D.C.E.D.La., 193 F. 556, 557; In" }, { "docid": "9597685", "title": "", "text": "security held by the creditor produces income during bankruptcy administration, such income is used to pay post-bankruptcy interest on the secured claim. City of New York v. Saper, 336 U.S. 328, 330, Note 7, 69 S.Ct. 554, 93 L.Ed. 710; Vanston Bondholders Protective Committee v. Green, supra, 329 U.S. 156, 164, 67 S.Ct. 237, 91 L.Ed. 162; Beecher v. Leavenworth State Bank, 9 Cir., 192 F.2d 10, 14. As shown by the Beecher case, supra, relied upon by appellee, and by other cases hereinafter referred to, which are relied upon by the appellants, there is some difference of opinion whether a third exception is recognized in instances where the value of the security is more than sufficient to pay both the principal and interest thereon to date of payment of the claim secured, thereby. We are of the opinion that in such cases interest on a secured claim should be allowed to the date of payment. Appellee relies upon Sexton v. Dreyfus, supra, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244; and City of New York v. Saper, supra, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710. In our opinion, these cases, as well as Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, did not involve the same question which is presented here. Vanston Bondholders Protective Committee v. Green involved interest on interest. Sexton v. Dreyfus involved a question of marshalling. City of New York v. Saper involved interest on tax claims which are not secured obligations. See In re Gotham Can Co., 2 Cir., 48 F.2d 540, and in re Worden, D.C.W.D. Ky., 107 F.Supp. 496, where two of these cases are so distinguished. On the contrary, the rule contended for by appellants was recognized as the correct rule by the Supreme Court in Coder v. Arts, 213 U.S. 223, at page 245, 29 S.Ct. 436, 53 L.Ed. 772. In the opinion in Vanston Bondholders Protective Committee v. Green, supra, 329 U.S. 156, at page 164, 67 S.Ct. at page 240, the Court in stating the general rule said— “'Simple interest on secured" }, { "docid": "15526333", "title": "", "text": "Co. v. DuBois, 312 U.S. 510, 527, 61 S.Ct. 675, 85 L.Ed. 982 (1941); Institutional Investors v. Chicago, M., St. P. & P., 318 U.S. 523, 546, 63 S.Ct. 727, 87 L.Ed. 959 (1943). It is also contended by NAC that the Vanston case did not change the rule in the Coder, Sexton, and Ticonic cases, but that, as shown by cases subsequent to the Van- stem case, the rule allowing interest to a secured creditor out of the security remains the law applicable to bankruptcy proceedings, including reorganization proceedings. See In re Macomb Trailer Coach, Inc., 200 F.2d 611 (C.C.A.6, 1952); Kagan v. Industrial Washing Machine Corp., 182 F.2d 139 (C.C.A.l, 1950); Palo Alto Mutual Savings & Loan Association v. Williams, 245 F.2d 77 (C.C.A.9, 1957) overruling Beecher v. Leavenworth State Bank, 192 F.2d 10 (C.C.A.9,1951); Eddy v. Prudence Bonds Corp., 165 F.2d 157 (C.C.A.2, 1947). It is the position of NAC that the Vanston case is authority only for the proposition that a bankruptcy court may disallow interest upon interest to a secured creditor from the security proceeds, even though such proceeds are adequate to permit such payment. While this was the specific result reached in the Vanston case, this Court is of the opinion that the legal principle announced in the Van-ston case cannot be limited only to the factual situation where interest upon interest is involved. Rather, the Court there spoke of the duty of the bankruptcy court “to determine how and what claims shall be allowed under equitable principles.” (Emphasis supplied). The Court explained the rule allowing interest to secured creditors out of the security by stating: “But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor. Coder v. Arts, 213 U.S. 223, 245 [29 S.Ct. 436, 53 L.Ed. 772] ; Sexton v. Dreyfus, supra. See also Johnson v. Norris [C.C.A.5], 190 F. 459.” The Court went on to state: “It is manifest that the" }, { "docid": "2460924", "title": "", "text": "Limited (In re 268 Limited), 789 F.2d 674, 676 (9th Cir.1986); Bank of Honolulu v. Anderson (In re Anderson), 69 B.R. 105, 108 (9th Cir. BAP 1986). The Court notes that Travelers does not claim entitlement to the default rate of interest in consequence of the filing of this bankruptcy case. In fact, the first post-petition payment was made timely, at the non-default interest rate. However, the debtor thereafter has only made partial payments, and these payments have been late. In consequence, Travelers claims that it is entitled to charge at the higher default interest rate of 14.75 percent per annum from the date of default. The touchstone for all decisions determining the allowance of interest in bankruptcy reorganization is a balance of equities between creditor and creditor or between creditors and debtor. The leading case is Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946), which arose under the Bankruptcy Act. In Vanston the issue was whether the insolvent debtor was required to pay interest on unpaid interest to first mortgage bondholders after the court had suspended the interest payments, where the bond indenture provided for such payment and where the debtor’s assets were sufficient to pay the first mortgage bondholders in full including the interest on interest. The Supreme Court recognized that, if interest on interest were paid to the first mortgage bondholders, the distribution to lower priority creditors, including unsecured creditors, would be measurably reduced. The Supreme Court disallowed the payment of interest on interest, stating that bankruptcy courts must balance the equities between creditor and creditor, or between creditors and the debt- or. Id., 329 U.S. at 165, 67 S.Ct. at 241. Cf Debentureholders Protective Committee v. Continental Investment Corp., 679 F.2d 264, 269 (1st Cir.1982), cert. denied, 459 U.S. 894, 103 S.Ct. 192, 74 L.Ed.2d 155 (1982) (interest on interest allowed where debtor is solvent). This equitable balancing led to the rule under the Bankruptcy Act that secured creditors should be allowed interest where the value of the security exceeded the debt plus the accrued interest. See, e.g.," }, { "docid": "15526331", "title": "", "text": "the filing of this opinion or will submit further briefs within 20 days of the filing of this opinion. The entry of an order in accordance with this opinion will await the resolution of the issue of the foreclosure and disposition of the inventory and collateral. This opinion will constitute the findings of fact and conclusions of law in the case. ON MOTION TO ALTER JUDGMENT In accordance with the opinion of the Court filed in this cause upon July 3, 1963, a judgment was duly entered. NAC has now filed a motion seeking to alter the judgment with respect to the disallowance of interest and attorney fees after the date of filing the reorganization petition. It is contended by NAC that, as a secured creditor, it should have been allowed interest to the “date of payment” and that the Court was in error in disallowing interest from and after the date of the petition in bankruptcy. NAC further asserts that the Court was likewise in error in disallowing attorney fees and costs due it after the date of the bankruptcy proceedings. The Court, in allowing interest and attorney fees prior to the institution of the bankruptcy proceedings, but disallowing such interest and attorney fees after the filing of the petition in bankruptcy, relied upon the case of Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946). NAC contends that a secured creditor is entitled to interest on its claim at the rate provided for in its contract with the debtor until the date of payment of the claim if the value of the property securing the debt is sufficient to pay the principal and such interest. As pointed out by NAC, this rule was established by a line of cases prior to the Vanston case. See Coder v. Arts, 213 U.S. 223, 245, 29 S.Ct. 436, 53 L.Ed. 772 (1909); Sexton v. Dreyfus, 219 U.S. 339, 346, 31 S.Ct. 256, 55 L.Ed. 244 (1911); Ticonic National Bank v. Sprague, 303 U.S. 406, 58 S.Ct. 612, 82 L.Ed. 926 (1938); Consolidated Rock Products" }, { "docid": "18727609", "title": "", "text": "to collect interest under the original terms of the contracts and the right to reaccelerate the debts if MFPC again defaults under the terms of the agreements. See In re Forest Hills Associates, 11 B.C.D. at 1147-1148, 40 B.R. 410. II. Interest on Overdue Interest Payments The second issue which the parties have asked this Court to resolve is whether MFPC must pay interest on the installments of interest which have remained unpaid since MFPC filed its bankruptcy petition on August 26, 1982. The Supreme Court has stated that “it is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor.” Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 165, 67 S.Ct. 237, 241, 91 L.Ed. 162 (1946). The obligation to pay post-petition interest, that is, any interest that accrues after a debtor has filed a petition in bankruptcy, is likewise founded on equitable principles. A. The Cognizability of Post-Petition Simple Interest Claims In general, claims for post-petition interest can be divided into two categories: claims which are secured, and unsecured claims. Since the classes which make up this reorganization plan are made up of both secured and unsecured creditors, these two types of claims will be dealt with separately. The general rule regarding the payment of post-petition interest on unsecured claims is that where the debtor is insolvent, the accrual of interest on unsecured claims against the debtor is suspended as of the date of the filing of the bankruptcy petition. Vanston Bondholders Protective Committee v. Green, 329 U.S. at 163, 67 S.Ct. at 240; Sexton v. Dreyfus, 219 U.S. 339, 344, 31 S.Ct. 256, 257, 55 L.Ed. 244 (1911); Debentureholders Protective Committee of Continental Investment Corporation, 679 F.2d 264, 268 (1st Cir.), cert. denied, 459 U.S. 894, 103 S.Ct. 192, 74 L.Ed.2d 155 (1982) (hereinafter “CIC’) However, where the debtor’s estate is sufficient to pay the interest which accrues after the filing date, “it would seem inappropriate to return to the debtor a surplus of" }, { "docid": "23131233", "title": "", "text": "protecting them “pending a ratable distribution among all the creditors according to their interests as of the date the receivership began,” [329 U.S. 156, 67 S.Ct. 242] it would have been contrary to that purpose and inequitable to the junior creditors to have junior creditors suffer and the mort gage bondholders enriched because of a stay order required to further the receivership aim. This result naturally followed from an examination of the usual rules that deal with simple interest claims in bankruptcy and in reorganization proceedings, In re Wisconsin Cent. Ry. Co., D.C.D.Minn.1950, 93 F.Supp. 579, 582, affirmed United States Trust Co. of New York v. Zelle, 8 Cir., 1951, 191 F.2d 822, certiorari denied 1952, 342 U.S. 944, 72 S.Ct. 558, 96 L.Ed. 703. Thus, with respect to simple interest the Supreme Court said: “The general rule in bankruptcy and in equity receivership has been that interest on the debtors’ obligations ceases to accrue at the beginning of proceedings. Exaction of interest, where the power of a debtor to pay even his contractual obligations is suspended by law, has been prohibited because it was considered in the nature of a penalty imposed because of delay in prompt payment —a delay necessitated by law if the courts are properly to preserve and protect the estate for the benefit of all interests involved * * * Courts have felt that it would be inequitable for anyone to gain an advantage or suffer a loss because of such delay.” 329 U.S. at pages 163, 164, 67 S.Ct. at page 240. However, the Court carefully noted that this rule with respect to simple interest did not apply where the contest was between a creditor and stockholder of the debtor: “But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor.” 329 U.S. at page 164, 67 S.Ct. at page 241. Since the result the Court reached stemmed from the equitable principles developed with respect" } ]

[ { "docid": "12559559", "title": "", "text": "that Plain tiffs due process claim was properly dismissed. IV. Plaintiffs alleged injuries do not constitute a violation of Plaintiffs equal protection rights A. The Equal Protection Clause Claim “The Equal Protection Clause of the Fourteenth Amendment commands that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const. amend. XIV, § 1. The Supreme Court has stated that this language ‘embodies the general rule that States must treat like eases alike but may treat unlike cases accordingly.’ ” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.2005) (quoting Vacco, 521 U.S. at 799, 117 S.Ct. 2293). To establish a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis. Id.; see also TriHealth, Inc., 430 F.3d at 788. When a plaintiff does not allege that the government’s actions burden a fundamental right or target a suspect class, the plaintiff is said to proceed on a so-called “class of one” theory and must prove that the government’s actions lacked any rational basis. Radvansky, 395 F.3d at 312. Under rational basis scrutiny, government action amounts to a constitutional violation only if it “is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government’s actions were irrational.” Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir.2005). A “plaintiff may demonstrate that the government action lacks a rational basis ... either by negativing every conceivable basis which might support the government action, or by demonstrating that the challenged government action was motivated by animus or ill-will.” Id. at 711; see also TriHealth, Inc., 430 F.3d at 788 (citing Warren, 411 F.3d at 710). Under rational basis review, the defendant “has no obligation to produce evidence to sustain the rationality of its actions; its choice is presumptively valid and ‘may be based on rational speculation unsupported by" } ]

[ { "docid": "19726116", "title": "", "text": "deprive him of a right secured by the Federal Constitution or laws of the United States. See Alkire v. Irving, 330 F.3d 802, 813 (6th Cir.2003). The Court will first address the arguments set forth in Hartman’s briefing based on evidence previously considered and found to be insufficient in connection with Wiles’ motion for a stay. Complicating this discussion is Hartman’s implicit if not express incorporation of many arguments developed more fully in prior briefing. For example, although Hartman references an alleged equal protection argument based on treatment purportedly infringing on his free speech rights, he does not develop this line of argument much at all. Most of Hartman’s briefing, which is often word-for-word identical to Wiles’ briefing, presents arguments that were only fleshed out during the Wiles hearing. Hartman did not similarly develop many of these arguments at his own hearing, clouding precisely what arguments he is actually pursuing. In an effort to be comprehensive, the Court has where possible attributed to Hartman the arguments it thinks he is making and has addressed them accordingly, essentially drawing at length upon the content of the Wiles proceeding and decision that Hartman makes relevant here. Similar to Wiles, Hartman pleads that “Defendants’ overarching execution policy, including their wholly discretionary approach to their written execution protocol and their informal policies, violates [his] rights to equal protection under the law as guaranteed by the Fourteenth Amendment.” (ECF No. 16 ¶ 475.) He contends that the protocol is facially invalid because it codifies disparate treatment of similarly situated individuals without sufficient justification so as to be arbitrary, irrational, and capricious. The Sixth Circuit has explained the inquiry this argument necessitates: “The Equal Protection Clause of the Fourteenth Amendment commands that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const. amend. XIV, § 1. The Supreme Court has stated that this language ‘embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.2005) (quoting Vacco [v. Quill], 521" }, { "docid": "14209843", "title": "", "text": "S.Ct. 2293[, 138 L.Ed.2d 834 (1997) ]). To establish a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis. Id.; see also TriHealth, Inc. [v. Board of Com’rs, Hamilton County, Ohio], 430 F.3d [783] at 788 [ (6th Cir. 2005) ]. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 298 (6th Cir.2006). When the disparate treatment burdens a fundamental right, strict scrutiny applies. Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir.2010). What this means is that the state action is permissible only if it is narrowly tailored to a compelling governmental interest. Cf. Does v. Munoz, 507 F.3d 961, 964 (6th Cir.2007). One fundamental right involved in inmate claims such as that asserted by Wiles is the right to be free from cruel and unusual punishment. As they have in the past, Defendants continue to attempt to transform this Fourteenth Amendment claim into a pure Eighth Amendment claim. But as this Court has previously explained in its Smith Opinion and Order, the former claim sufficiently targets that sweeping core deviations would at least burden Plaintiffs fundamental right by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation. For present purposes, it does not matter whether there is a qualifying risk of severe pain-a conclusion rejected by the only medical expert who testified-but only the creation of unequal treatment impacting the fundamental protection involved. Cooey (Smith), 801 F.Supp.2d at 653. This Court is again reluctant to hold that there can only be an equal protection violation when there is an Eighth Amendment violation. There is relatively little authority in regard to the burden on a fundamental right that would warrant strict scrutiny here. Recently, the Ninth Circuit addressed a § 1983 equal protection claim that implicated similar analysis" }, { "docid": "19726118", "title": "", "text": "U.S. [793] at 799, 117 S.Ct. 2293[, 138 L.Ed.2d 834 (1997) ]). To establish a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis. Id.; see also TriHealth, Inc. [v. Board of Com’rs, Hamilton County], 430 F.3d [783] at 788 [ (6th Cir.2005) ]. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 298 (6th Cir.2006). When the disparate treatment burdens a fundamental right, strict scrutiny applies. Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir.2010). What this means is that the state action is permissible only if it is narrowly tailored to a compelling govern mental interest. Cf. Does v. Munoz, 507 F.3d 961, 964 (6th Cir.2007). One fundamental right involved in inmate claims such as that asserted by Wiles is the right to be free from cruel and unusual punishment. As they have in the past, Defendants continue to attempt to transform this Fourteenth Amendment claim into a pure Eighth Amendment claim. But as this Court has previously explained, the former claim sufficiently targets that sweeping core deviations would at least burden an inmate’s fundamental rights by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation. For present purposes, it does not matter whether there is a qualifying risk of severe pain, but only the creation of unequal treatment impacting the fundamental protection involved. This Court is again reluctant to hold that there can only be an equal protection violation when there is an Eighth Amendment violation. There is relatively little authority in regard to the burden on a fundamental right that would warrant strict scrutiny here. Recently, the Ninth Circuit addressed a § 1983 equal protection claim that implicated similar analysis in Towery v. Brewer, 672 F.3d 650 (9th Cir.2012). After rejecting the argument that the" }, { "docid": "14209842", "title": "", "text": "Constitution or laws of the United States. See Alkire v. Irving, 330 F.3d 802, 813 (6th Cir.2003). Wiles pleads that “Defendants’ overarching execution policy, including their wholly discretionary approach to their written execution protocol and their informal policies, violates [his] rights to equal protection under the law as guaranteed by the Fourteenth Amendment.” (ECF No. 4 ¶ 1077.) He contends that the protocol is facially invalid because it codifies disparate treatment of similarly situated individuals without sufficient justification so as to be arbitrary, irrational, and capricious. The Sixth Circuit has explained the inquiry this argument necessitates: “The Equal Protection Clause of the Fourteenth Amendment commands that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const, amend. XIV, § 1. The Supreme Court has stated that this language ‘embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.2005) (quoting Vacco [v. Quill], 521 U.S. [793] at 799, 117 S.Ct. 2293[, 138 L.Ed.2d 834 (1997) ]). To establish a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis. Id.; see also TriHealth, Inc. [v. Board of Com’rs, Hamilton County, Ohio], 430 F.3d [783] at 788 [ (6th Cir. 2005) ]. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 298 (6th Cir.2006). When the disparate treatment burdens a fundamental right, strict scrutiny applies. Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir.2010). What this means is that the state action is permissible only if it is narrowly tailored to a compelling governmental interest. Cf. Does v. Munoz, 507 F.3d 961, 964 (6th Cir.2007). One fundamental right involved in inmate claims such as that asserted by Wiles is the right to be free from cruel and unusual punishment. As they have" }, { "docid": "22504916", "title": "", "text": "of the Fourteenth Amendment. Id. The district court held that John had failed to state a claim under either of these clauses and granted the defendants' motion to dismiss. Miami Univ. , 247 F.Supp.3d at 891, 895, 896. The district court also held that the individual defendants were entitled to qualified immunity. Id. at 896. \"To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law.\" Heyne v. Metro. Nashville Pub. Sch. , 655 F.3d 556, 562 (6th Cir. 2011) (quoting Marvin v. City of Taylor , 509 F.3d 234, 243 (6th Cir. 2007) ). Here, the defendants do not dispute that they were acting under the color of state law; thus, the issue is whether John has sufficiently alleged that he has been deprived of a constitutional right. Because part of John's due-process claim is premised on his equal-protection claim, we will address the two counts in the opposite order from how they are presented in his complaint. A. Count 7: Equal Protection To establish an equal-protection violation, a plaintiff must allege that the state made a distinction which \"burden[ed] a fundamental right, target[ed] a suspect class, or intentionally treat[ed] one differently from others similarly situated without any rational basis for the difference.\" Radvansky v. City of Olmsted Falls , 395 F.3d 291, 312 (6th Cir. 2005). John alleges three instances when the defendants treated him differently from those similarly situated without any rational basis for the treatment. Only the last of the three asserted occasions of differential treatment sustains a viable-equal protection claim. First, John argues that he faced unequal treatment because Jane was given \"limited amnesty\" for underage drinking. Appellant Br. at 39-40. Although the district court considered this an allegation of unequal treatment, Miami Univ. , 247 F.Supp.3d at 895-96, John's complaint does not support his argument that he faced an unequal application of Miami University's policy against underage" }, { "docid": "19726117", "title": "", "text": "accordingly, essentially drawing at length upon the content of the Wiles proceeding and decision that Hartman makes relevant here. Similar to Wiles, Hartman pleads that “Defendants’ overarching execution policy, including their wholly discretionary approach to their written execution protocol and their informal policies, violates [his] rights to equal protection under the law as guaranteed by the Fourteenth Amendment.” (ECF No. 16 ¶ 475.) He contends that the protocol is facially invalid because it codifies disparate treatment of similarly situated individuals without sufficient justification so as to be arbitrary, irrational, and capricious. The Sixth Circuit has explained the inquiry this argument necessitates: “The Equal Protection Clause of the Fourteenth Amendment commands that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const. amend. XIV, § 1. The Supreme Court has stated that this language ‘embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.2005) (quoting Vacco [v. Quill], 521 U.S. [793] at 799, 117 S.Ct. 2293[, 138 L.Ed.2d 834 (1997) ]). To establish a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis. Id.; see also TriHealth, Inc. [v. Board of Com’rs, Hamilton County], 430 F.3d [783] at 788 [ (6th Cir.2005) ]. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 298 (6th Cir.2006). When the disparate treatment burdens a fundamental right, strict scrutiny applies. Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir.2010). What this means is that the state action is permissible only if it is narrowly tailored to a compelling govern mental interest. Cf. Does v. Munoz, 507 F.3d 961, 964 (6th Cir.2007). One fundamental right involved in inmate claims such as that asserted by Wiles is the right to be free from cruel and unusual" }, { "docid": "5057584", "title": "", "text": "that lack any rational basis, noting: The Sixth Circuit has explained the class of one approach: When a plaintiff does not allege that the government’s actions burden a fundamental right or target a suspect class, the plaintiff is said to proceed on a so-called “class of one” theory and must prove that the government’s actions lacked any rational basis. Radvansky, 395 F.3d at 312. Under rational basis scrutiny, government action amounts to a constitutional violation only if it “is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government’s actions were irrational.” Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir.2005). A “plaintiff may demonstrate that the government action lacks a rational basis ... either by negativing every conceivable basis which might support the government action, or by demonstrating that the challenged government action was motivated by animus or ill-will.” Id. at 711; see also TriHealth, Inc., 430 F.3d at 788 (citing Warren, 411 F.3d at 710). Under rational basis review, the defendant “has no obligation to produce evidence to sustain the rationality of its actions; its choice is presumptively valid and ‘may be based on rational speculation unsupported by evidence or empirical data.’ ” Id. at 790 (quoting Fed. Comm. Comm’n v. Beach Comm., Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). The burden falls squarely to the plaintiff, who must overcome the presumption of rationality by alleging that the defendant acted in a manner clearly contrary to law. Id. Id. at 653 (quoting Club Italia Soccer & Sports Org., Inc., 470 F.3d at 298). Similar to Smith and Brooks before him, Lorraine “also asserts that the only rationale for core deviations that eliminate safeguards and introduce greater uncertainty into the execution process is to merely complete the executions at all or nearly all costs.” Cooey (Brooks), 2011 WL 5326141, at *4. Within this context, Defendants represented to this Court in the Brooks proceedings two fundamental precepts. One was that Ohio would not and in fact could not deviate from the core protocol" }, { "docid": "14209844", "title": "", "text": "in the past, Defendants continue to attempt to transform this Fourteenth Amendment claim into a pure Eighth Amendment claim. But as this Court has previously explained in its Smith Opinion and Order, the former claim sufficiently targets that sweeping core deviations would at least burden Plaintiffs fundamental right by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation. For present purposes, it does not matter whether there is a qualifying risk of severe pain-a conclusion rejected by the only medical expert who testified-but only the creation of unequal treatment impacting the fundamental protection involved. Cooey (Smith), 801 F.Supp.2d at 653. This Court is again reluctant to hold that there can only be an equal protection violation when there is an Eighth Amendment violation. There is relatively little authority in regard to the burden on a fundamental right that would warrant strict scrutiny here. Recently, the Ninth Circuit addressed a § 1983 equal protection claim that implicated similar analysis in Towery v. Brewer, 672 F.3d 650 (9th Cir.2012). After rejecting the argument that the state execution protocol at issue violated the Eighth Amendment prohibition on cruel and unusual punishment — a protocol that affords significantly more discretion than Ohio’s protocol does — that court of appeals explained: As we have already determined, the protocol as it will be implemented for [plaintiffs’] executions does not violate their right under the Eighth Amendment to be free from cruel and unusual punishment. Where there is no Eighth Amendment violation, the district court ruled, that necessarily means that there has been no interference with fundamental rights sufficient to trigger strict scrutiny under the Equal Protection Clause. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). We do not need to adopt this broad proposition to conclude that given the ways the Director has chosen to exercise his discretion in the upcoming executions, there has been no showing here of any burden on the right to be free of cruel" }, { "docid": "19726119", "title": "", "text": "punishment. As they have in the past, Defendants continue to attempt to transform this Fourteenth Amendment claim into a pure Eighth Amendment claim. But as this Court has previously explained, the former claim sufficiently targets that sweeping core deviations would at least burden an inmate’s fundamental rights by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation. For present purposes, it does not matter whether there is a qualifying risk of severe pain, but only the creation of unequal treatment impacting the fundamental protection involved. This Court is again reluctant to hold that there can only be an equal protection violation when there is an Eighth Amendment violation. There is relatively little authority in regard to the burden on a fundamental right that would warrant strict scrutiny here. Recently, the Ninth Circuit addressed a § 1983 equal protection claim that implicated similar analysis in Towery v. Brewer, 672 F.3d 650 (9th Cir.2012). After rejecting the argument that the state execution protocol at issue violated the Eighth Amendment prohibition on cruel and unusual punishment — a protocol that affords significantly more discretion than Ohio’s protocol does — that court of appeals explained: As we have already determined, the protocol as it will be implemented for [plaintiffs’] executions does not violate their right under the Eighth Amendment to be free from cruel and unusual punishment. Where there is no Eighth Amendment violation, the district court ruled, that necessarily means that there has been no interference with fundamental rights sufficient to trigger strict scrutiny under the Equal Protection Clause. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). We do not need to adopt this broad proposition to conclude that given the ways the Director has chosen to exercise his discretion in the upcoming executions, there has been no showing here of any burden on the right to be free of cruel and unusual punishment. Id. at 659. Thus, the Ninth Circuit expressly declined to adopt the" }, { "docid": "15065346", "title": "", "text": "fundamental right to be free from cruel and unusual punishment. Defendants attempt to transform Plaintiffs Fourteenth Amendment claim into a pure Eight Amendment claim. But the former claim sufficiently targets that the sweeping core deviations at least burden Plaintiffs fundamental right by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation. Defendants offer no compelling reason for selectively introducing risk into some executions but not others. Alternatively and perhaps even more effectively, Plaintiff argues that he constitutes a “class of one” and that the pattern and practice of core deviations are impermissible because they lack any rational basis. The Sixth Circuit has explained the class of one approach: When a plaintiff does not allege that the government’s actions burden a fundamental right or target a suspect class, the plaintiff is said to proceed on a so-called “class of one” theory and must prove that the government’s actions lacked any rational basis. Radvansky, 395 F.3d at 312. Under rational basis scrutiny, government action amounts to a constitutional violation only if it “is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government’s actions were irrational.” Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir.2005). A “plaintiff may demonstrate that the government action lacks a rational basis ... either by negativing every conceivable basis which might support the government action, or by demonstrating that the challenged government action was motivated by animus or ill-will.” Id. at 711; see also TriHealth, Inc., 430 F.3d at 788 (citing Warren, 411 F.3d at 710). Under rational basis review, the defendant “has no obligation to produce evidence to sustain the rationality of its actions; its choice is presumptively valid and ‘may be based on rational speculation unsupported by evidence or empirical data.’ ” Id. at 790 (quoting Fed. Comm. Comm’n v. Beach Comm., Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). The burden falls squarely to the plaintiff, who must overcome the presumption" }, { "docid": "3166018", "title": "", "text": "survive the O’Brien test. Alternatively, the government posits that the anti-begging statute is a reasonable time, place, and manner restriction. The standard applicable to time, place, or manner restrictions closely resembles O’Brien intermediate scrutiny. Ward v. Rock Against Racism, 491 U.S. 781, 797-98, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Indeed, the two standards have been treated “as sufficiently similar to be applied interchangeably.” Richland Bookmart, 555 F.3d at 521. “To qualify as a reasonable time-place-and-manner regulation of speech, [a] law must (1) be content-neutral, (2) serve a significant government interest, (3) be narrowly tailored to serve that interest, and (4) leave open ample alternative channels of communication.” Jobe v. City of Catlettsburg, 409 F.3d 261, 267 (6th Cir.2005) (citing Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); Prime Media, Inc. v. City of Brentwood, 398 F.3d 814, 818 (6th Cir.2005); United Food & Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738, 751-52 (6th Cir.2004)). In this case, the statute fails to satisfy the requirements of a valid time, place, or manner restriction. The statute applies at all times, in all public places, to all manners of begging. The statute is content-specific, not content-neutral. The statute leaves open minimal, if any, alternative channels of communication. The statute fares no better under a time, place, or manner framework than under the O’Brien test. II. Equal Protection “The Equal Protection Clause ‘protects against invidious discrimination among similarly situated individuals or implicating fundamental rights.’ ” Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir.2010) (quoting Scarbrough v. Morgan Cnty. Bd. of Ed., 470 F.3d 250, 260 (6th Cir.2006)). “The threshold element of an equal protection claim is disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied is determined by the classification used by government decision-makers.” Scarbrough, 470 F.3d at 260. “Strict scrutiny is appropriate only if a classification ‘infringes on a class of people’s fundamental rights [or] targets a member of a suspect class.’ ” Miller, 622 F.3d at" }, { "docid": "20512853", "title": "", "text": "eve of the execution while legal activity is pending: In the cases of Franklin, Nicklasson, and Smulls, a district court or a panel of this court entered a stay of execution that was later vacated, and the State eventually proceeded later in the 24-hour period authorized for the execution. We therefore conclude that the prisoners have not stated a claim under the Equal Protection Clause based on alleged violations of the Department’s execution policy. Assuming for the sake of analysis, however, that the state officials deviate from the execution protocol by carrying out sentences while legal activity is pending, the practice does not violate the Constitution. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). “If a legislative classification or distinction neither burdens a fundamental right nor targets a suspect class, we will uphold it so long as it bears a rational relation to some legitimate end.” Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997) (internal quotation marks and brackets omitted). The prisoners apparently invoke the “fundamental right” strand of equal protection analysis. They argue that it is unconstitutional for the State to disregard a “core provision” of its execution protocol, and that a prohibition on executions before legal activity has ceased is a “core provi sion.” The prisoners draw the term “core provision” from two decisions of a district court concerning Ohio’s execution protocol. See Cooey v. Kasich, 801 F.Supp.2d 623 (S.D.Ohio 2011); In re Ohio Execution Protocol Litig., 840 F.Supp.2d 1044 (S.D.Ohio), aff'd, 671 F.3d 601 (6th Cir.2012). The Ohio district court reasoned that because certain “core” provisions of the State’s execution protocol were the “precise procedural safeguards” that had been “heralded in prior discussions of Eighth Amendment claims” in the same litigation, “core deviations” from the protocol burdened a prisoner’s “fundamental right”" }, { "docid": "15065345", "title": "", "text": "Court has stated that this language ‘embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.’ ” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.2005) (quoting Vacco, 521 U.S. at 799, 117 S.Ct. 2293). To establish a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis. Id.; see also TriHealth, Inc., 430 F.3d at 788. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 298 (6th Cir.2006). When the disparate treatment burdens a fundamental right, strict scrutiny applies. Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir.2010). This means that Defendants’ core deviations are permissible only if they are narrowly tailored to a compelling governmental interest. Does v. Munoz, 507 F.3d 961, 964 (6th Cir.2007). Here, Plaintiff points to his fundamental right to be free from cruel and unusual punishment. Defendants attempt to transform Plaintiffs Fourteenth Amendment claim into a pure Eight Amendment claim. But the former claim sufficiently targets that the sweeping core deviations at least burden Plaintiffs fundamental right by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation. Defendants offer no compelling reason for selectively introducing risk into some executions but not others. Alternatively and perhaps even more effectively, Plaintiff argues that he constitutes a “class of one” and that the pattern and practice of core deviations are impermissible because they lack any rational basis. The Sixth Circuit has explained the class of one approach: When a plaintiff does not allege that the government’s actions burden a fundamental right or target a suspect class, the plaintiff is said to proceed on a so-called “class of one” theory and must prove that the government’s actions lacked any rational basis. Radvansky, 395 F.3d at 312. Under rational" }, { "docid": "22926790", "title": "", "text": "Protection Claim Radvansky also claims that the Appel-lees violated his right to equal protection under the law guaranteed by the Fourteenth Amendment. The district court granted summary judgment to the Appel-lees on the equal protection claim without providing any separate treatment or analysis apart from its probable cause determination. Because Radvansky has presented no evidence in support of his equal protection claim, we conclude that the Appellees are entitled to summary judgment with regards to this issue. The Equal Protection Clause of the Fourteenth Amendment commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Supreme Court has stated that this language “embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.” Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997). The states cannot make distinctions which either burden a fundamental right, target a suspect class, or intentionally treat one differently from others similarly situated without any rational basis for the difference. Id.; Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). In his complaint, brief in opposition to summary judgment, and appellate brief, Radvansky has failed to state any way in which the Appellees have burdened a fundamental right, which he was exercising, targeted a suspect class, of which he is a part, or treated him any differently than others similarly situated without any rational basis. “Inasmuch as [appellant] merely alleged that he was treated unfairly as an individual by [appel-lees’] actions, his equal protection claim was properly dismissed.” Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir.1999). Therefore, the district court’s grant of summary judgment on this count is affirmed. D. Due Process Claim Similarly, Radvansky claims that Appel-lees deprived him of liberty without due process of law. Once again, the district court granted summary judgment to the Appellees without providing any separate treatment or analysis apart from its probable cause determination. Because Rad-vansky’s reliance on the Due Process Clause is misplaced," }, { "docid": "14209841", "title": "", "text": "“ ‘[tjhese factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.’ ” Id. (quoting Mich. Coal, of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991)). B. Likelihood of Success Wiles’ motion asserts arguments falling under his fourth claim, which is an Equal Protection claim under 42 U.S.C. § 1983. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... 42 U.S.C. § 1983. Thus, in order to prevail on his § 1983 claim, Wiles must show that, while acting under color of state law, Defendants deprived or will deprive him of a right secured by the Federal Constitution or laws of the United States. See Alkire v. Irving, 330 F.3d 802, 813 (6th Cir.2003). Wiles pleads that “Defendants’ overarching execution policy, including their wholly discretionary approach to their written execution protocol and their informal policies, violates [his] rights to equal protection under the law as guaranteed by the Fourteenth Amendment.” (ECF No. 4 ¶ 1077.) He contends that the protocol is facially invalid because it codifies disparate treatment of similarly situated individuals without sufficient justification so as to be arbitrary, irrational, and capricious. The Sixth Circuit has explained the inquiry this argument necessitates: “The Equal Protection Clause of the Fourteenth Amendment commands that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const, amend. XIV, § 1. The Supreme Court has stated that this language ‘embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.2005) (quoting Vacco [v. Quill], 521 U.S. [793] at 799, 117" }, { "docid": "15065344", "title": "", "text": "are adequate even if capable of further refinement. It is only Ohio’s implementation of these core components that is often grossly and inexplicably inadequate. This does not necessarily mean that Plaintiff or any other capital inmate can make a federal case out of it. The extant question is thus whether the documented pattern of core deviations and the expressed underlying rationale of subjective adherence are not merely offensive in the why-cannot-government-work sense, but whether they are offensive in the constitutional sense. Defendants’ policy and practice of permissible core deviations or failures only matter in a court of law if they run afoul of the Constitution, which necessitates examination of two distinct theories of constitutional jurisprudence. Plaintiff argues that Defendants’ pattern and practice of core deviations treat inmates disparately in a manner that burdens fundamental rights. The Sixth Circuit has explained that “[t]he Equal Protection Clause of the Fourteenth Amendment commands that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const, amend. XIV, § 1. The Supreme Court has stated that this language ‘embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.’ ” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.2005) (quoting Vacco, 521 U.S. at 799, 117 S.Ct. 2293). To establish a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis. Id.; see also TriHealth, Inc., 430 F.3d at 788. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 298 (6th Cir.2006). When the disparate treatment burdens a fundamental right, strict scrutiny applies. Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir.2010). This means that Defendants’ core deviations are permissible only if they are narrowly tailored to a compelling governmental interest. Does v. Munoz, 507 F.3d 961, 964 (6th Cir.2007). Here, Plaintiff points to his" }, { "docid": "20512854", "title": "", "text": "nor targets a suspect class, we will uphold it so long as it bears a rational relation to some legitimate end.” Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997) (internal quotation marks and brackets omitted). The prisoners apparently invoke the “fundamental right” strand of equal protection analysis. They argue that it is unconstitutional for the State to disregard a “core provision” of its execution protocol, and that a prohibition on executions before legal activity has ceased is a “core provi sion.” The prisoners draw the term “core provision” from two decisions of a district court concerning Ohio’s execution protocol. See Cooey v. Kasich, 801 F.Supp.2d 623 (S.D.Ohio 2011); In re Ohio Execution Protocol Litig., 840 F.Supp.2d 1044 (S.D.Ohio), aff'd, 671 F.3d 601 (6th Cir.2012). The Ohio district court reasoned that because certain “core” provisions of the State’s execution protocol were the “precise procedural safeguards” that had been “heralded in prior discussions of Eighth Amendment claims” in the same litigation, “core deviations” from the protocol burdened a prisoner’s “fundamental right” for purposes of equal protection analysis. Cooey, 801 F.Supp.2d at 652-53. The court thought certain “core deviations ... subverted the key constitutional principles that control the execution process.” In re Ohio Execution Protocol Litig., 840 F.Supp.2d at 1049. See also Arthur v. Thomas, 674 F.3d 1257, 1263 (11th Cir.2012) (concluding that an inmate stated an equal protection claim by alleging that the State of Alabama substantially deviated from an execution protocol, because “[s]ignificant deviations from a protocol that protects inmates from cruel and unusual punishment can violate the Eighth Amendment”). Whatever the merits of the Ohio district court’s analysis with regard to the execution protocol at issue in those decisions, the prisoners here have not stated a claim that Missouri’s alleged deviations from its protocol burden a fundamental right. There is no “fundamental right” to avoid execution while no judicial stay is in effect but legal activity is pending. E.g., Hamilton v. Texas, 497 U.S. 1016, 110 S.Ct. 3262, 111 L.Ed.2d 772 (1990) (denying stay of execution despite four votes to grant writ of certiorari)." }, { "docid": "5057581", "title": "", "text": "too many are too much. Moreover, the protocol itself rejects permissible non-core deviations that are not approved by the Director. It is thus not the individual non-core deviations themselves or in the aggregate that lead to this Court’s rejection of substantial compliance. Rather, what is significant is the overarching core concern implicated that makes the non-core deviations errors as opposed to approved departures. By the evidence presented at the Brooks testimony, Defendants presented this Court with what amounts to a fifth core component of the protocol: the Director and only the Director can approve non-core protocol deviations. This rule provides a coherence and equality to the protocol that, given the testimony in the Brooks hearing, would otherwise be lacking. The Sixth Circuit’s explanation of the constitutional right involved provides the necessary context in which to view the salvaging effect of the protocol’s chain-of-command practice: “The Equal Protection Clause of the Fourteenth Amendment commands that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const, amend. XIV, § 1. The Supreme Court has stated that this language ‘embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.2005) (quoting Vacco [v. Quill], 521 U.S. [793] at 799, 117 S.Ct. 2293[, 138 L.Ed.2d 834 (1997) ]). To establish a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis. Id.; see also TriHealth, Inc. [v. Board of Com’rs, Hamilton County, Ohio], 430 F.3d [783] at 788 [ (6th Cir. 2005) ]. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 298 (6th Cir.2006). When the disparate treatment burdens a fundamental right, strict scrutiny applies. Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir.2010). What this means is that any core deviation from the" }, { "docid": "5057583", "title": "", "text": "protocol is permissible only if it is narrowly tailored to a compelling governmental interest. Cf. Does v. Munoz, 507 F.3d 961, 964 (6th Cir.2007). The fundamental right involved in inmate claims such as Lorraine’s claim is the right to be free from cruel and unusual punishment. As they have in the past, Defendants continue to attempt to transform Lorraine’s Fourteenth Amendment claim into a pure Eighth Amendment claim. But as this Court has previously explained in its Smith Opinion and Order, the former claim sufficiently targets that sweeping core deviations would at least burden Plaintiffs fundamental right by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation. For present purposes, it does not matter whether there is a qualifying risk of severe pain-a conclusion rejected by the only medical expert who testified-but only the creation of unequal treatment impacting the fundamental protection involved. Cooey (Smith), 801 F.Supp.2d at 653. The Court also explained the problem with core deviations that lack any rational basis, noting: The Sixth Circuit has explained the class of one approach: When a plaintiff does not allege that the government’s actions burden a fundamental right or target a suspect class, the plaintiff is said to proceed on a so-called “class of one” theory and must prove that the government’s actions lacked any rational basis. Radvansky, 395 F.3d at 312. Under rational basis scrutiny, government action amounts to a constitutional violation only if it “is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government’s actions were irrational.” Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir.2005). A “plaintiff may demonstrate that the government action lacks a rational basis ... either by negativing every conceivable basis which might support the government action, or by demonstrating that the challenged government action was motivated by animus or ill-will.” Id. at 711; see also TriHealth, Inc., 430 F.3d at 788 (citing Warren, 411 F.3d at 710). Under rational basis review, the defendant" }, { "docid": "5057582", "title": "", "text": "1. The Supreme Court has stated that this language ‘embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.2005) (quoting Vacco [v. Quill], 521 U.S. [793] at 799, 117 S.Ct. 2293[, 138 L.Ed.2d 834 (1997) ]). To establish a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that the government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis. Id.; see also TriHealth, Inc. [v. Board of Com’rs, Hamilton County, Ohio], 430 F.3d [783] at 788 [ (6th Cir. 2005) ]. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 298 (6th Cir.2006). When the disparate treatment burdens a fundamental right, strict scrutiny applies. Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir.2010). What this means is that any core deviation from the protocol is permissible only if it is narrowly tailored to a compelling governmental interest. Cf. Does v. Munoz, 507 F.3d 961, 964 (6th Cir.2007). The fundamental right involved in inmate claims such as Lorraine’s claim is the right to be free from cruel and unusual punishment. As they have in the past, Defendants continue to attempt to transform Lorraine’s Fourteenth Amendment claim into a pure Eighth Amendment claim. But as this Court has previously explained in its Smith Opinion and Order, the former claim sufficiently targets that sweeping core deviations would at least burden Plaintiffs fundamental right by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation. For present purposes, it does not matter whether there is a qualifying risk of severe pain-a conclusion rejected by the only medical expert who testified-but only the creation of unequal treatment impacting the fundamental protection involved. Cooey (Smith), 801 F.Supp.2d at 653. The Court also explained the problem with core deviations" } ]

[ { "docid": "16553183", "title": "", "text": "control of parties, must be conceded. But such is not the case with patent experts, whoso opinion is received in evidence only In connection with the reasons on which it is based, and is to be accepted or rejected by the jury according to their own view of its fallacy or truth. * * * Their statements of fact are simply to be weighed, like those of all other witnesses, by their ahility and disposition to disclose the truth; and their opinions are to be followed when, in the judgment of the jury, they are supported by tbe facts from which they are deduced.” See Walk. Pat. (2d Ed.) § 498. The law is now well settled that the trial court not only has the power, but it is its duty, where the evidence is insufficient to support a verdict in favor of the plaintiff, to instruct the jury to find a verdict in favor of the defendant. This rule applies to patent as well as other cases, and is as applicable to the question of infringement as to any other material or controlling question involved in the case. In 3 Rob. Pat. § 1014, it is said: •‘If an inspection of the invention practiced by tbe defendant, in connection with the one described and claimed in the patent, satisfies the court that there has been no infringement, * * * there is no occasion for extraneous evidence, and the court should direct the jury to return a verdict for the defendant without further inquiry. * * * Neither a court nor a jury are permitted to follow the guidance of any expert, in defiance of the results of practical operation and experiment, nor against conclusions derived by necessary inferences from established facts.” Walk. Pat. (2d Ed.) § 536; Fond du Lac Co. v. May, 137 U. S. 395, 403, 11 Sup. Ct. 98; Railway Co. v. Rowley, 155 U. S. 621, 630, 15 Sup. Ct. 224; Black Diamond Coal-Min. Co. v. Excelsior Coal Co., 156 U. S. 611, 618, 15 Sup. Ct. 482; De Lorica v. Whitney, 11 C." } ]

[ { "docid": "12837678", "title": "", "text": "at in isolation does not present a new element or idea. The question then becomes does LeFebvre’s connecting portion constitute a new element or idea when used to offset the squeezing plate in a mop structure. On this point it is significant to note that plaintiffs concede and the record establishes that every element of the LeFebvre mop, other than the connecting portion producing the offset, is disclosed by the prior art. As for the offset, we believe that it is, in essence, also disclosed by the prior art. The district conn finds, and the plaintiffs agree, that the Sendler patent, which shows a flat squeezing plate which is pivoted to the rear of the sponge block by rolling the end of the plate around a pintle to form a hinge, as a result of its construction contains a squeezing plate which is offset from the axis of rotation of the pintle by about Vie of an inch. Although the district court dismisses the offset in the Sendler patent as being “merely a coincidental result of the method of making the hinge,” it is inescapable, it seems, to us, that Sendler does show an offset of the squeezing plate. The Sendler offset, although slight, cannot be dismissed lightly in passing upon the validity of the patent in suit. Moreover, an offset, in the form of a curved squeezing plate designed for squeezing a string mop, is also disclosed by another prior patent, Johnson No. 1,551,668, issued September 1, 1925. It is true that LeFebvre by means of an angular connecting portion increased the offset of the squeezing plate and thus, the district court finds, produced “a more efficient” squeezing operation. However, it is a well established principle “that a mere carrying forward of the original thought, a change only in form, proportions, or degree, doing the same thing in the same way, by substantially the same means, with better results, is not such an invention as will sustain a patent.” Market Street Railway Co. v. Rowley, 1895, 155 U.S. 621, 629, 15 S.Ct. 224, 228, 39 L.Ed. 284; B. F." }, { "docid": "14543404", "title": "", "text": "Dorn patent completely anticipates the Siden patent. In Siden there was no new or surprising result, Great Atlantic & Pac. Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162, and no invention. Under such circumstances, the motion was properly granted. Cf: Market Street Cable Railway Co. v. Rowley, 1895, 155 U.S. 621 at page 625, 15 S.Ct. 224, at page 226, 39 L.Ed. 284; Park-In Theatres v. Perkins, 9 Cir., 1951, 190 F.2d 137, 142; Leishman v. Radio Condenser Co., 9 Cir., 1948, 167 F.2d 890, certiorari denied 335 U.S. 891, 69 S.Ct. 246, 93 L.Ed. 429; Stuart Oxygen Co. v. Josephian, 9 Cir., 1947, 162 F.2d 857, 859. II. Appellants urge that despite the court’s conclusion that Siden was invalid for lack of invention over the prior art, the presence of affidavits disputing the similarity of the devices was sufficient to create an issue of fact. We note first that the court below was careful to specifically limit itself (in granting the summary judgment) to a consideration of Exhibits A to I, inclusive, and L, alone. (Record, p. 83.) He thus excluded Exhibit J, the model showing the Dorn wire in the hem of a drapery in a horizontal position; Exhibit K, the Dorn extensible resilient wire member; and Exhibit M, the Hancock affidavit. As to Exhibit K, and the undisputed part of Exhibit M, he might well have considered them, but did not, nor will we. We note second that the court recognized that the burden of establishing that there was no material disputed issue of fact rested on the moving parties, appellees herein (Record, p. 89). This was proper. The mere presence of affidavits alleging questions of fact existed, or differing in interpretation and reading of the patent and various prior art, whether cited or non-cited, is of no consequence if the court did not consider such disputed facts. Here he specifically declined to consider such affidavits, but considered only the patent in suit, the alleged infringing product, the prior art cited in the file wrapper, and the non-cited prior" }, { "docid": "11378057", "title": "", "text": "that in consequence industry in general had been forced to use for that purpose electric motors of a type incapable of cheap and efficient speed control, he found that the known method of controlling the output of a fan by placing adjustable vanes in the inlets, although inefficient, had become less inefficient than cither speed control or dampering. In our opinion this, although a contribution to the fan art and a benefit to industry, is not an invention or discovery of a nature to entitle Hagen to the protection afforded by a patent. The question remains as to the wider range of control, primarily by spin, which Hagen’s method provided. Admitting that he went further than his predecessors in disregarding shock-loss, with its attendant inefficiency and waste, and admitting that he improved greatly upon the method of control by spin over what was known before, still it does not follow that there is anything patentable about his method. While some improvements may be protected by a patent, it is well established that not all of them can be. Few principles of the law of patents are better established than “that a mere carrying forward of the original thought — a change only in form, proportions, or degree, doing the same thing in the same way, by substantially the same means, with better results — is not such an invention as will sustain a patent.” Market Street Cable Railway Company v. Rowley, 155 U.S. 621, 629, 15 S.Ct. 224, 228, 39 L.Ed. 284. The following language of the Supreme Court in the case of Smith v. Nichols, 21 Wall. 112, 118, 22 L.Ed. 566, the basic case on this subject, is peculiarly appropriate: “A patentable invention is a mental result. It must be new and shown to be of practical utility. Everything within the domain of the conception belongs to him who conceived it. The machine, process, or product is but its material reflex and embodiment. A new idea may be ingrafted upon an old invention, be distinct from the conception which preceded it, and be an improvement. In such case" }, { "docid": "8792830", "title": "", "text": "overwhelming weight of the evidence, point so strongly in favor of one party or the other that the court feels reasonable men could not possibly come to a contrary conclusion.” 3 Moore’s Federal Practice, p. 3104. Perhaps the decisions establish that the judge’s power and duty in this respect goes further upon the question of invention in patent cases. See the thoughtful discussion by the court in Hanovia Chemical & Mfg. Co. v. David Buttrick Co., 1 Cir., 1942, 127 F.2d 888. Whatever the extent of the power in patent cases may be it is certainly as wide upon the question of invention as upon any other question, ordinarily treated as one of fact, but called a “question of law” when its decision becomes the responsibility of the judge. Singer Manufacturing Co. v. Cramer, 1904, 192 U.S. 265, 24 S.Ct. 291, 48 L.Ed. 437; Market Street Railway Co. v. Rowley, 1895, 155 U.S. 621, 15 S.Ct. 224, 39 L.Ed. 284; Brothers v. Lidgerwood Mfg. Co., 2 Cir., 1915, 223 F. 359; Connors et al. v. Ormsby, 1 Cir., 1906, 148 F. 13. That responsibility was properly assumed by the trial judge in this case. Did he exercise it correctly? The Caley patent and those of the prior art are so extremely simple as to speak for themselves, so that the court could der termine from mere comparison what was the claimed invention described in each, and to decide from such comparison whether the articles described were or were not substantially the same. The patent in suit is described as a “waver or curler that comprises a sliort strip of rubber or the like having an eye at one end, a head at the other and with or without a slit along an intermediate portion of the strip length.” Claim 7 which is typical states, “A hair 'curler comprising a flat strip of ■ uniform thickness having cut edges, a longitudinally extending slit in the strip and a transversely extending flat locking head adapted to pass through the slit in quarter turned position of the head and to lock against the" }, { "docid": "22234594", "title": "", "text": "for the modification. It is hardly in a position now to assign for error the failure of the court to insert such a modification. The conclusion we have reached as to contributory infringement is supported by the decision of the circuit court of appeals of the Second circuit on similar facts in Thomson-Houston Electric Go. v. Kelsey Electric Railway Specialty Co., 22 C. C. A. 1, 75 Fed. 1005, affirming an order of injunction by Judge Townsend in the circuit court. Judge Wallace dissented, but we think the reasoning of the majority more satisfactory. The learned dissenting judge likened the case to one in which the seller of wire or rails should be enjoined from selling them, because the articles might be used in any unlawful combination on an electric railway. Such articles could, of course, be used in so many lawful ways other than in the combinations of the patent that it would be quite unlikely that the sellers could have an intention to promote infringement of particular patents in their sale, and it would be most difficult to prove such intention. But, where the article can only be used in a patented combination, the inference of the intention of the maker and seller is certain, and the right of the patentee to injunction ought, we think, to be equally certain. We come now to the second assignment of error in these cases, namely, that the paténts relied on are void because the inventions covered by them were patented in prior patents to the same patentee. The circumstances make this question different as it arises on the two patents,- and we shall first consider whether patent No. 424.695 is void by reason of the prior issue of patent No. 397,451. We are clearly of opinion that it is not. The application for No. 424.695 was filed more than a year before that for the patent No. 397,451. The inventor expressly states in his specifications in No. 397,451 that his invention is an improvement on the switch and trolley devices and combinations shown in the application which subsequently resulted in" }, { "docid": "22185989", "title": "", "text": "to the jury the law which should govern them, so as to guide them to truth, and guard them against error, and may, if they disregard instructions, set aside their verdict, the ultimate response to the question must come from the jury. Keyes v. Grant, 118 U.S. 25, 36-37, 6 S.Ct. 974, 980-981, 30 L.Ed. 54 (1886): [Whether differences from the prior art] would not require the exercise of the faculty of invention, but would be suggested by the skill of an experienced workman.... was a question of fact properly to be left for determination to the jury, under suitable instructions from the court upon the rules of law, which should guide them to their verdict. And there was evidence upon both sides of the issue sufficient to require that it should be weighed and considered by the jury in the determination of the question. ... Adams v. Bellaire Stamping Co., 141 U.S. 539, 541-42, 12 S.Ct. 66, 67, 35 L.Ed. 849 (1891): On the trial special questions were submitted to the jury, and they found [inter alia] that the Irwin patent disclosed no improvement which required invention as distinguished from mere mechanical skill or judgment.... Thomson Spot Welder Co. v. Ford Motor Co., 265 U.S. 445, 446, 44 S.Ct. 533, 534, 68 L.Ed. 1098 (1924): The question whether an improvement requires mere mechanical skill or the exercise of the faculty of invention, is one of fact; and in an action at law for infringement is to be left to the determination of the jury. The Supreme Court has recognized the role of the directed verdict as appropriate in patent as in other jury trials, when the criteria are met; e.g., Heald v. Rice, 104 U.S. 737, 749, 26 L.Ed. 910 (1881); Fond du Lac County v. May, 137 U.S. 395, 403, 11 S.Ct. 98, 100, 34 L.Ed. 714 (1890); Market Street Cable Ry. Co. v. Rowley, 155 U.S. 621, 625, 15 S.Ct. 224, 226, 39 L.Ed. 284 (1895); Singer Mfg. Co. v. Cramer, 192 U.S. 265, 275, 24 S.Ct. 291, 295, 48 L.Ed. 437 (1904). The Court has also" }, { "docid": "11378058", "title": "", "text": "them can be. Few principles of the law of patents are better established than “that a mere carrying forward of the original thought — a change only in form, proportions, or degree, doing the same thing in the same way, by substantially the same means, with better results — is not such an invention as will sustain a patent.” Market Street Cable Railway Company v. Rowley, 155 U.S. 621, 629, 15 S.Ct. 224, 228, 39 L.Ed. 284. The following language of the Supreme Court in the case of Smith v. Nichols, 21 Wall. 112, 118, 22 L.Ed. 566, the basic case on this subject, is peculiarly appropriate: “A patentable invention is a mental result. It must be new and shown to be of practical utility. Everything within the domain of the conception belongs to him who conceived it. The machine, process, or product is but its material reflex and embodiment. A new idea may be ingrafted upon an old invention, be distinct from the conception which preceded it, and be an improvement. In such case it is patentable. The prior patentee cannot use it without the consent of the improver, and the latter cannot use the original invention without the consent of the former. But a mere carrying forward or new or more extended application of the original thought, a change only in form, proportions, or degree, the substitution of equivalents, doing substantially the same thing in the same way by substantially the same means with better results, is not such invention as will sustain a patent. These rules apply alike, whether what preceded was covered by a patent or rested only in public knowledge and use. In neither case can there be an invasion of such domain and an appropriation of anything found there. In one case everything belongs to the prior patentee, in the other, to the public at large.” This is still the law. De Forest Radio Co. v. General Electric Co., 283 U.S. 664, 51 S.Ct. 563, 75 L.Ed. 1339. See, also, Walker on Patents, Deller’s Edition §§ 17, 31. The case of Eibel Process Co." }, { "docid": "8792829", "title": "", "text": "and parties both in the trial court and upon this appeal. Nor are | we impressed with defendant’s contention that the motion fails to comply with Rule 50(a) because it presents questions of fact rather than questions of law. Cf. Duncan v. Montgomery Ward & Co., 8 Cir., 1940, 108 F.2d 848, modified on other grounds 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147, where the 'question of preponderance of evidence was not sufficient for a motion for judgment «. o. v. Plaintiff’s motion here was grounded upon lack of invention or anticipation. The issue of invention is ordinarily one for the trier of fact. Thomson Spot Welder Company v. Ford Motor Company, 1924, 265 U.S. 445, 44 S.Ct. 533, 68 L.Ed. 1098; Hazeltine Corporation v. General Motors Corporation, 3 Cir., 1942, 131 F.2d 34; Radiator Specialty Co. v. Buhot, 3 Cir., 1930, 39 F.2d 373. But in any question of fact, “a verdict will normally be directed where both the facts and the inferences to be drawn therefrom, as supported by the overwhelming weight of the evidence, point so strongly in favor of one party or the other that the court feels reasonable men could not possibly come to a contrary conclusion.” 3 Moore’s Federal Practice, p. 3104. Perhaps the decisions establish that the judge’s power and duty in this respect goes further upon the question of invention in patent cases. See the thoughtful discussion by the court in Hanovia Chemical & Mfg. Co. v. David Buttrick Co., 1 Cir., 1942, 127 F.2d 888. Whatever the extent of the power in patent cases may be it is certainly as wide upon the question of invention as upon any other question, ordinarily treated as one of fact, but called a “question of law” when its decision becomes the responsibility of the judge. Singer Manufacturing Co. v. Cramer, 1904, 192 U.S. 265, 24 S.Ct. 291, 48 L.Ed. 437; Market Street Railway Co. v. Rowley, 1895, 155 U.S. 621, 15 S.Ct. 224, 39 L.Ed. 284; Brothers v. Lidgerwood Mfg. Co., 2 Cir., 1915, 223 F. 359; Connors et al. v." }, { "docid": "22660132", "title": "", "text": "v. Emerson, 47 U.S. (6 How.) 437, 484, 12 L.Ed. 505 (1848); Silsby v. Foote, 55 U.S. (14 How.) 218, 225, 14 L.Ed. 391 (1853); Winans v. Denmead, 56 U.S. (15 How.) at 338; Winans v. New York & Erie R.R. Co., 62 U.S. (21 How.) 88, 100, 16 L.Ed. 68 (1859); Bischoff v. Wethered, 76 U.S. (9 Wall.) 812, 816, 19 L.Ed. 829 (1870); Heald v. Rice, 104 U.S. 737, 749, 26 L.Ed. 910 (1882); Coupe v. Royer, 155 U.S. 565, 579-80, 15 S.Ct. 199, 205, 39 L.Ed. 263 (1895); Market St. Cable Ry. Co. v. Rowley, 155 U.S. 621, 625, 15 S.Ct. 224, 226, 39 L.Ed. 284 (1895); Singer Mfg. Co. v. Cramer, 192 U.S. 265, 275, 24 S.Ct. 291, 295, 48 L.Ed. 437 (1904); see also 2 William C. Robinson, The Law of Patents for Useful Inventions § 731, at 481 (1890) (hereinafter Robinson on Patents); George T. Curtis, A Treatise on the Law of Patents for Useful Inventions § 222, at 251 (4th ed. 1873) (hereinafter Curtis on Pat ents ). Time and again the Supreme Court has itself resolved disputes over the construction of claims as a matter of law. See, e.g., Coupe v. Royer, 155 U.S. at 574-75, 579, 15 S.Ct. at 203, 205 (stating that court defines the scope of the claims and reversing the trial judge’s erroneous claim construction); Keystone Bridge Co. v. Phoenix Iron Co., 95 U.S. 274, 275, 24 L.Ed. 344 (1877) (resolving claim construction contentions on the basis of an exhaustive review of the patent and its discussion of the relevant art). The reason that the courts construe patent claims as a matter of law and should not give such task to the jury as a factual matter is straightforward: It has long been and continues to be a fundamental principle of American law that “the construction of a written evidence is exclusively with the court.” Levy v. Gadsby, 7 U.S. (3 Cranch) 180, 186, 2 L.Ed. 404 (1805) (Marshall, C.J.); Eddy v. Prudence Bonds Corp., 165 F.2d 157, 163 (2d Cir.1947) (Learned Hand, J.) (“[Ajppellate courts have untrammelled" }, { "docid": "22660203", "title": "", "text": "are not the same, but different, then the question of identity is one of pure construction, and not of evidence, and consequently is a matter of law for the court, without any auxiliary matter of fact to be passed upon by a jury, if the action be at law. The Court there determined that it had a case in which the question could be determined “from the mere reading of the two specifications” and that it was “too plain for argument that they are perfectly distinct.” Id., 104 U.S. at 753; see also Singer Mfg. Co. v. Cramer, 192 U.S. 265, 275, 24 S.Ct. 291, 295, 48 L.Ed. 437 (1904) (“As in each of the patents in question it is apparent from the face of the instrument that extrinsic evidence is not needed ... the question of infringement or no infringement is one of law....”); Market St. Cable Ry. Co. v. Rowley, 155 U.S. 621, 625, 15 S.Ct. 224, 226, 39 L.Ed. 284 (1894) (same as Heald v. Rice). These cases recognize that where extrinsic evidence is required and raises a real factual dispute, the question is no longer one of “pure construction,” so that the jury must play its role in the construction of the claims. But where the question has arisen — where the proper construction of claims depends on the resolution of a factual dispute — the Supreme Court has stated in no uncertain terms that the jury has the duty to decide. These are cases where the meaning of a patent may not be derived from its terms alone, forcing the judge to go beyond the documentary evidence for aid. This gives rise to issues of historical fact the resolution of which must be left to a jury. The claim before the court in Silsby v. Foote, 55 U.S. (14 How.) 218, 14 L.Ed. 391 (1852), was directed to “the combination, above described, by which the regulation of the heat of the stove, or other structure in which it may be used, is effected.” Id., 55 U.S. at 226. The specification disclosed a stove containing a" }, { "docid": "13398470", "title": "", "text": "successful methods of taking cores in the oil producing industries that have been utilized in various oil fields for some years past. The various methods and combinations shown seemed to be in the degrees of success rather than in the conception of basic ideas or processes that rise to the dignity of invention. The evidence in the suit at bar has confirmed such conclusions. There is wide-spread difference of opinion by experts and experienced oil producing operators, as to the relative efficiency and success of differently constructed core drills.” In his opinion the learned trial judge further says: “It appears to me what Oliver did was to take the Bashara teachings and especially of Figure 2 and add two- of the old flush type blades. The record is clear that blades of that type were old in the art, and there was no invention in their employment in the taking of cores. I think that the difference in dimension of the blades in the two patents does not create any inventive distinction. It seems to me that if there be any difference therein, it is one that would appear readily to-any mechanic skilled in the art.” A mere carrying forward of the original thought, a change only in form, proportions, or degree, doing the same thing in the same way, by substantially the same means, with better results, is not such an invention as will sustain a patent. Roberts v. Ryer, 91 U. S. 150, 23 L. Ed. 267; Belding Mfg. Co. v. Challenge Corn Planter Co., 152 U. S. 100, 14 S. Ct. 492, 38 L. Ed. 370; Market Street Cable Ry. Co. v. Rowley, 155 U. S. 621, 629, 15 S. Ct. 224, 39 L. Ed. 284; Railroad Supply Co. v. Elyria Iron Co., 244 U. S. 285, 292, 37 S. Ct. 502, 61 L. Ed. 1136. The trial court, with opportunity to observe and examine the witnesses, found that “the record discloses that from the early part of 1924 down through the summer of that year, core drills that substantially combined all the elements shown by the" }, { "docid": "22660202", "title": "", "text": "to any material fact); Newell Companies, Inc. v. Kenney Mfg. Co., 864 F.2d 757, 762, 763, 9 USPQ2d 1417, 1421-22 (1988) (approving use of judgment as a matter of law and summary judgment on obviousness where underlying facts are not disputed). Indeed, some cases cited in support of a purported rule that claim construction is always entirely a matter of law expressly limit the rule to those cases where the patent may be understood on the basis of the documents alone, without resort to extrinsic evidence; these eases acknowledge that fact questions could be raised that would require submission to a jury. In Heald v. Rice, 104 U.S. 737, 749, 26 L.Ed. 910 (1881), the Supreme Court explained: That is, if it appears from the face of the instruments that extrinsic evidence is not needed to explain terms of art, or to apply the descriptions to the subject-matter, so that the court is able from mere comparison to say what is the invention described in each, and to affirm from mere comparison that the inventions are not the same, but different, then the question of identity is one of pure construction, and not of evidence, and consequently is a matter of law for the court, without any auxiliary matter of fact to be passed upon by a jury, if the action be at law. The Court there determined that it had a case in which the question could be determined “from the mere reading of the two specifications” and that it was “too plain for argument that they are perfectly distinct.” Id., 104 U.S. at 753; see also Singer Mfg. Co. v. Cramer, 192 U.S. 265, 275, 24 S.Ct. 291, 295, 48 L.Ed. 437 (1904) (“As in each of the patents in question it is apparent from the face of the instrument that extrinsic evidence is not needed ... the question of infringement or no infringement is one of law....”); Market St. Cable Ry. Co. v. Rowley, 155 U.S. 621, 625, 15 S.Ct. 224, 226, 39 L.Ed. 284 (1894) (same as Heald v. Rice). These cases recognize that where extrinsic" }, { "docid": "1116043", "title": "", "text": "infringement. The trial court denied Ryan’s motion for a directed verdict. The jury verdict favored Caley. Thereafter, Ryan moved to set aside this verdict and the court granted this motion and entered judgment for Ryan. Caley challenged this disposition of the case on appeal but the court of appeals affirmed the lower court. There Caley had argued that the ruling of the trial court deprives every patentee of his right to a trial by jury on the question of invention as guaranteed by the Seventh Amendment, citing as' authority the decision in Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, a decision later qualified in Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636. Cf. footnote 2 in opinion of this court in Karn v. United States, 9 Cir., 158 F.2d 568 where the control of the court over jury verdicts was the subject of comment. A late expression of. this court dealing with the power of a trial court over a jury verdict in patent cases is found in Himes v. Chadwick, 9 Cir., 199 F.2d 100, 102, where we state that “the right and duty of the trial judge to direct a verdict in a patent case, where the circumstances indicate that the jury has departed from the relevant legal criteria by which either a jury or a judge must be guided in their or his fact-finding function, was well expressed in Pack-wood v. Briggs & Stratton Corp., 3 Cir., [1952], 195 F.2d 971, 973”. In the Packwood case the Third Circuit noted its prior decision in the Ryan case and referred to decisions of the Supreme Court establishing the standard of patentable invention which we must apply to the facts revealed in the instant appeal.' It laid emphasis on the rule spelled out with meticulous care in A & P Tea, supra. And see Market Street Cable Railway Co. v. Rowley, 155 U.S. 621, 625, 15 S.Ct. 224, 39 L.Ed. 284; Kwikset Locks, Inc., v. Hillgren, 9 Cir., 210 F.2d 483. In our" }, { "docid": "1116044", "title": "", "text": "a jury verdict in patent cases is found in Himes v. Chadwick, 9 Cir., 199 F.2d 100, 102, where we state that “the right and duty of the trial judge to direct a verdict in a patent case, where the circumstances indicate that the jury has departed from the relevant legal criteria by which either a jury or a judge must be guided in their or his fact-finding function, was well expressed in Pack-wood v. Briggs & Stratton Corp., 3 Cir., [1952], 195 F.2d 971, 973”. In the Packwood case the Third Circuit noted its prior decision in the Ryan case and referred to decisions of the Supreme Court establishing the standard of patentable invention which we must apply to the facts revealed in the instant appeal.' It laid emphasis on the rule spelled out with meticulous care in A & P Tea, supra. And see Market Street Cable Railway Co. v. Rowley, 155 U.S. 621, 625, 15 S.Ct. 224, 39 L.Ed. 284; Kwikset Locks, Inc., v. Hillgren, 9 Cir., 210 F.2d 483. In our recent opinion in Jacuzzi Bros., Inc., v. Berkeley Pump Co., 9 Cir., 191 F.2d 632, 637 we again laid down the rule respecting the result obtained from merely combining devices well known in the art. There we pointedly discussed the problem of patentable invention in cases where there has been incorporated in a mechanical combination old elements which were well known in the art but which did not functionally operate differently in the combination than they did before integration. On the evidence before him and under the authorities we have cited, the trial judge acted within the scope of his authority in directing a verdict in favor of the appellee. Judgment affirmed. . The only testimony describing the structure, component parts and the mechanism of the pump apparatus of both parties was given by the President of Berkeley. His testimony also dealt with the mode of operation and results claimed for the Berkeley combination pump device. He described a so-called “shallow well” as one where the water is within reach of a common centrifugal pump," }, { "docid": "22660318", "title": "", "text": "construction of any instrument of writing,” but may testify on matters of art or science: Experts may be examined to explain terms of art, and the state of the art, at any given time. They may explain to the court and jury the machines, models, or drawings, exhibited. They may point out the difference or identity of the mechanical devices involved in their construction. The maxim of “unique in sua arte credendum” permits them to be examined to questions of art or science peculiar to their trade or profession; but professors or mechanics cannot be received to prove to the court or jury what is the proper or legal construction of any instrument of writing. 62 U.S. at 100-01. On this aspect, too, the case does not stand for the removal of factual findings from the jury; indeed the Court recognized the various kinds of evidentiary facts on which technical experts routinely testify in patent cases. In Heald v. Rice, 104 U.S. 737, 26 L.Ed. 910 (1882) the Court stated that when there was no dispute about the technology, no need for evidence, and no question of fact requiring resolution by a jury, the “mere comparison” of a reissue and original patent was a matter of law for the court. Other cases related to a directed verdict when no fact was in dispute, e.g., Singer Mfg. Co. v. Cramer, 192 U.S. 265, 24 S.Ct. 291, 48 L.Ed. 437 (1904) (the trial court should have granted a directed verdict when there was no dispute as to the meaning of any term of art and no substantial evidence of infringement); or the grant of a new trial, e.g., Market St. Cable Ry. Co. v. Rowley, 155 U.S. 621, 15 S.Ct. 224, 39 L.Ed. 284 (1895) (since the facts were not disputed and no extrinsic evidence was given or needed, the court should have instructed the jury on lack of patentable novelty; the Court remanded with directions to set aside the verdict and grant a new trial). The new trial and the directed verdict are modes of judicial management of the trial process," }, { "docid": "13398471", "title": "", "text": "me that if there be any difference therein, it is one that would appear readily to-any mechanic skilled in the art.” A mere carrying forward of the original thought, a change only in form, proportions, or degree, doing the same thing in the same way, by substantially the same means, with better results, is not such an invention as will sustain a patent. Roberts v. Ryer, 91 U. S. 150, 23 L. Ed. 267; Belding Mfg. Co. v. Challenge Corn Planter Co., 152 U. S. 100, 14 S. Ct. 492, 38 L. Ed. 370; Market Street Cable Ry. Co. v. Rowley, 155 U. S. 621, 629, 15 S. Ct. 224, 39 L. Ed. 284; Railroad Supply Co. v. Elyria Iron Co., 244 U. S. 285, 292, 37 S. Ct. 502, 61 L. Ed. 1136. The trial court, with opportunity to observe and examine the witnesses, found that “the record discloses that from the early part of 1924 down through the summer of that year, core drills that substantially combined all the elements shown by the patent in suit were in use in the oil fields in Southern California.” Upon careful consideration of the prior art, and giving due weight to the well-established utility of appellant’s device and its highly favorable commercial reception, we are unable to find in it room for invention. The most which, to our minds, can be said is that Oliver has, in the exercise of a high degree of mechanical skill, selected and put together the most desirable parts of different devices in the same art, making a new structure perhaps better than any which preceded it, but in which each part operates in substantially the same way as it did in the old and effects substantially the same results. This is not invention. See Edwards v. Dayton Mfg. Co. (C. C. A.) 257 F. 980, 984. We are in accord with the conclusions reached by the learned trial judge and we approve his finding above quoted. We are of opinion that the evidence in the record sustains both. The deeree is affirmed." }, { "docid": "22185990", "title": "", "text": "found [inter alia] that the Irwin patent disclosed no improvement which required invention as distinguished from mere mechanical skill or judgment.... Thomson Spot Welder Co. v. Ford Motor Co., 265 U.S. 445, 446, 44 S.Ct. 533, 534, 68 L.Ed. 1098 (1924): The question whether an improvement requires mere mechanical skill or the exercise of the faculty of invention, is one of fact; and in an action at law for infringement is to be left to the determination of the jury. The Supreme Court has recognized the role of the directed verdict as appropriate in patent as in other jury trials, when the criteria are met; e.g., Heald v. Rice, 104 U.S. 737, 749, 26 L.Ed. 910 (1881); Fond du Lac County v. May, 137 U.S. 395, 403, 11 S.Ct. 98, 100, 34 L.Ed. 714 (1890); Market Street Cable Ry. Co. v. Rowley, 155 U.S. 621, 625, 15 S.Ct. 224, 226, 39 L.Ed. 284 (1895); Singer Mfg. Co. v. Cramer, 192 U.S. 265, 275, 24 S.Ct. 291, 295, 48 L.Ed. 437 (1904). The Court has also referred to the complexity of these jury questions, and defined them as questions of ultimate fact on which depends the question of legal liability: United States v. Esnault-Pelterie, 299 U.S. 201, 205, 57 S.Ct. 159, 161-62, 81 L.Ed. 123 (1936): Validity and infringement are ultimate facts on which depends the question of liability. In actions at law they are to be decided by the jury. If the evidence is not sufficient to establish validity and infringement, it is the duty of the trial court to direct a verdict for defendant. United Gas Public Service Co. v. Texas, 303 U.S. 123, 140, 58 S.Ct. 483, 491-92, 82 L.Ed. 702 (1938): Cases at law triable by a jury in the federal courts often involve most difficult and complex questions, as, for example, in patent cases at law presenting issues of validity and infringement. The Supreme Court unequivocally established that when the question of invention has been placed at issue and tried to a jury, neither the trial court nor any appellate court decides the question of validity" }, { "docid": "1608586", "title": "", "text": "wire with a body material of cement or other plastic substance at that time. Therefore he was in error in supposing that he had made a discovery, or created a new article of manufacture. The combination of materials which he at that time made did not constitute a patentable invention, because in that he had been anticipated. Mr. Brown is not the inventor of expanded metal. After that material had been discovered and described in the Golding patent, there could be no invention in the mere adoption of it as a substitute for a metallic mesh of wire. The expanded metal produced no new result. All that may be said in its favor is that for certain purposes it produces a better result. By the use of expanded metal in place of wire a superior article of artificial slate can be produced, but the mere carrying forward and application of old ideas by the use of the newest and best materials does not require the exercise of the inventive faculties in the human mind. This case seems to come fairly within the rule laid down by the supreme court in the case of Railway Co. v. Rowley, 155 U. S. 621-631, 15 Sup. Ct. 224. The decision of that case appears to rest mainly upon a principle stated in the opinion by Mr. Justice Shiras in the following words: “A more carrying forward of tlie original thought, a change only in form, proportion, or degree, doing the same thing in the same way, by substantially the same means, with hotter results, is not such an invention as will sustain a patent. Roberts v. Ryer, 91 U. S. 150; Belding Mfg. Co. v. Challenge Corn-Planter Co., 152 U. S. 100, 14 Sup. Ct. 492.” Having given in brief my opinion upon the questions argued in this case, I feel constrained thereby to instruct the jury, according to the defendant’s request, as follows: Gentlemen of the Jury: The court instructs the jury to render a verdict in favor of the defendant and against the plaintiff, because the first claim of the patent" }, { "docid": "22285384", "title": "", "text": "which has gone into almost universal use in this country, we think he is entitled to a liberal construction of his claim, and that the Romadka device, containing as it does all the elements of his combination, should be held an infringement, though there are superficial dissimilarities in their construction. Id. at 45, 12 S.Ct. at 803. Because of the pioneer nature of the invention, the Court concluded that the claim should not be limited by the letter references back to the specification. But see Lehigh Valley R. Co. v. Kearney, 158 U.S. 461, 469, 15 S.Ct. 871, 874, 39 L.Ed. 1055 (1895) (contra where the invention was merely an improvement). The above cases illustrate the critical point. The scope of protection, whether liberal or narrow, was treated as a separate question from the fact of equivalency. Under the Act of 1870, the Court continued to hold that the construction of a patent claim was an issue of law for the court alone, not the jury. Market St. Cable Ry. Co. v. Rowley, 155 U.S. 621, 625, 15 S.Ct. 224, 226, 39 L.Ed. 284 (1895). The Court instructed the jury on the scope of the invention. Coupe, 155 U.S. at 579-80, 15 S.Ct. at 205. See also Singer Co., 192 U.S. at 275, 24 S.Ct. at 292; Heald v. Rice, 104 U.S. 737, 749, 26 L.Ed. 910 (1882). In holding that the doctrine was not restricted to pioneer inventions, the Court reiterated in Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 414, 28 S.Ct. 748, 749, 52 L.Ed. 1122 (1908), that the legal effect, i.e., “construction” was a matter which courts determined: The right view is expressed in Miller v. Eagle Mfg. Co., 151 U.S. 186, 207, [14 S.Ct. 310, 318-19, 38 L.Ed. 121] as follows: “The range of equivalents depends upon the extent and nature of the invention. If the invention is broad and primary in its character, the range of equivalents will be correspondingly bz’oad, under the liberal construction which the courts give to such inventions. ” See also Westinghouse v. Boyden Power Brake" }, { "docid": "2724387", "title": "", "text": "and quickly become uninteresting for the average player.” Id. col.2 11.49-54. Conversely, according to the specification, if the game elements “are overly complicated, the game takes too long to learn [and] is frustrating and uninteresting for the average player.” Id. col.2 11.57-60. The specific combination of game elements disclosed and claimed in the '242 patent thus deals with the problem of game design, and game elements from any strategy game, regardless how implemented, “logically would have commended itself to an inventor’s attention in considering [this] problem.” Clay, 966 F.2d at 659. Basic game elements remain the same regardless of the medium in which they are implemented: whether molded in plastic by a mechanical engineer or coded in software by a computer scientist. And, as MGA’s evidence shows, inventors of numerous prior art patents contemplated the implementation of their strategy games in both physical and electronic formats. Innovention Toys, 665 F.Supp.2d at 650 n. 23. For example, the Swift patent states that “[although the preferred embodiment is played by two players, obvious modifications of the game allow for ... a single player playing against a computer.” Swift col.2 11.47-51. Thus, because no reasonable jury could find that the Laser Chess references do not qualify as analogous prior art, and the district court erred in not so concluding as a matter of law. Because of its error, the district court failed to properly consider the scope and content of the relevant prior art as well as the differences between that art and the claimed invention, including whether one of ordinary skill in the art would have been motivated to combine the teachings of the Laser Chess references with the Swift patent in light of the standard articulated in KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007). We therefore remand these factual determinations to the district court to consider in the first instance. Furthermore, should the district court conclude that MGA has made out a prima facie case of obviousness based on the Laser Chess articles and the Swift patent, the court must then determine" } ]

[ { "docid": "8302825", "title": "", "text": "were slightly dubious. Id. at 542-45. We assessed the persuasiveness of each of the asserted reasons and then considered all the reasons together to determine whether they amounted to reasonable suspicion of criminal activity. Id. There, we held that they did not because “[although the government has pointed to several factors ... which we have recognized as valid considerations in forming reasonable suspicion, they are all relatively minor[,] and ... this case lacks any of the stronger indicators of criminal conduct that have accompanied these minor factors in other cases.” Id. at 545. In Patterson v. City of Cleveland, which involved a 42 U.S.C. § 1983 claim rather a suppression motion, an officer whose unit specialized in “high crime drug areas” was on patrol around midnight when she saw two African-American men, about whom she had no information, “involved in some type of exchange ... huddled together on the sidewalk.” 1999 WL 68576, at *1,1999 U.S.App. LEXIS 1203, at *2 (6th Cir. Jan. 21, 1999) (unpublished). The officer did not see anything exchanged, although one of the men “had his hands in a ‘cup-like fashion.’ ” Id. When the police arrived, the two men “pulled their hands apart” and walked quickly up the street. Id. at *1, 1999 U.S.App. LEXIS 1203, at *2-3. We held that “[t]hese facts, standing alone, would not allow a reasonable police officer to conclude that illicit activity was in progress,” and we reversed a grant of summary judgment that had been based on a finding of qualified immunity. Id. at *6, 1999 U.S.App. LEXIS 1203, at *19-20. On the other hand, factors that appear innocent in isolation may combine to form circumstances that, as a whole, support a finding of reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 273-75, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person’ ” (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690)); United States v. Sokolow, 490 U.S. 1, 9," } ]

[ { "docid": "5143523", "title": "", "text": "and unparticularized suspicion or hunch,” United States v. Powell, 222 F.3d 913, 917 (11th Cir.2000) (internal quotation marks omitted), “the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 751, 151 L.Ed.2d 740 (2002). The officer’s reasonable suspicion must be based on “specific articulable facts, together with rational inferences from those facts.” Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. at 2582. To determine whether Agent Cole had reasonable suspicion to stop Bautista-Silva’s vehicle, we “must look at the totality of the circumstances ... to see whether the [agent] ha[d] a particularized and objective basis for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273, 122 S.Ct. at 750 (internal quotation marks omitted). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” Id. at 273, 122 S.Ct. at 750-51 (internal quotation marks omitted). We may not consider each fact only in isolation, and reasonable suspicion may exist even if each fact “alone is susceptible of innocent explanation.” Id. at 277-78, 122 S.Ct. at 753. The Supreme Court has held that many of the factors that led Agent Cole to stop Bautista-Silva’s vehicle “may be taken into account in deciding whether there is reasonable suspicion to stop a [vehicle].” Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. at 2582. In Brignoni-Ponce, the Court provided a nonexhaustive list of some of the factors that “[o]fficers may consider”: (1) “the characteristics of the area in which” the vehicle is encountered; (2) the proximity of the vehicle to the border; (3) “the usual patterns of traffic on the particular road”; (4) an agent’s “previous experience with alien traffic”; (5) “information about recent illegal border crossings in the area”; (6) “[t]he driver’s behavior”; (7) and “[a]spects of the vehicle itself.” Id. at 884- 85, 95 S.Ct. at 2582. The Court also stated that “the apparent" }, { "docid": "9877924", "title": "", "text": "that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention.” United States v. Perez, 440 F.3d 363, 370 (6th Cir.2006) (citations and quotation marks omitted). The key question before us, therefore, is whether the officers had a reasonable suspicion to detain Garrido beyond the moment that the safety inspection was completed. “Reasonable suspicion requires specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the continued detention of a motorist after a traffic stop.” United States v. Smith, 263 F.3d 571, 588 (6th Cir.2001). The Supreme Court has emphasized that reasonable suspicion is “something more than an inchoate and unpartic-ularized suspicion or hunch,” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citation and quotation marks omitted), and that reviewing courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has 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) (citations omitted) (holding that a combination of suspicious factors, including a van traveling on a known smuggling route in a remote area, the driver slowing down upon noticing the officer, and the passengers possibly concealing cargo by having their knees raised, all gave rise to reasonable suspicion). Moreover, “the totality of the circumstances approach allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Martin, 289 F.3d 392, 398 (6th Cir.2002) (interpreting the Supreme Court’s then-recent decision in Arvizu). A district court’s determination that the officers had a reasonable suspicion is a mixed question of law and fact that we review de novo. United States v. Townsend, 305 F.3d 537, 541 (6th Cir.2002). In determining that the officers had a reasonable suspicion to believe that Garri-do was involved in criminal activity, the district court relied on the eight factors set forth in Part I.B. above. The" }, { "docid": "23252691", "title": "", "text": "and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including ‘obvious attempts to evade officers’; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and, (8) officer experience.” United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir.1997) (quoting Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. 2574). As noted above, in order to uphold the validity of the investigatory stop, we must discern from this melange of factors “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S. at 417-18, 101 S.Ct. 690. Often, the data in the record seems equally capable of supporting an innocent explanation as a reasonable suspicion. In such cases, the Supreme Court directs us to give due weight to the factual inferences drawn by law enforcement officers, United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), and has noted that officers may make reasonable deductions and inferences based on their experience and specialized training that “might well elude an untrained person.” Id. at 273, 122 S.Ct. 744 (internal quotation marks omitted). In this vein, the Court has emphasized that even when factors considered in isolation from each other are susceptible to an innocent explanation, they may collectively amount to a reasonable suspicion. Id. at 274, 122 S.Ct. 744. Of course, officers cannot rely solely on factors that would apply to many law-abiding citizens. See, e.g., United States v. Diaz-Juarez, 299 F.3d 1138, 1141 (9th Cir.2002) (“Reasonable suspicion may not be based on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped.”) (internal quotation marks omitted); United States v. Sig-mond-Ballesteros, 285 F.3d 1117, 1127 (9th Cir.2002) (holding that there was no reasonable suspicion where the factors underlying the suspicion depicted “ 'a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure’ ”) (quoting" }, { "docid": "14949076", "title": "", "text": "of a crime or eliminate innocent interpretations of the circumstances.” Carpenter, 462 F.3d at 986. Thus, factors that individually may be consistent with innocent behavior, when taken together, can give rise to reasonable suspicion, even though some persons exhibiting those factors will be innocent. Id.-, see also Arvizu, 534 U.S. at 277, 122 S.Ct. 744. “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). And, in this Circuit, the critical inquiry is not whether the searching officer actually feared danger, but whether “a hypothetical officer in the same circumstances could reasonably believe the suspect is dangerous.” United States v. Rowland, 341 F.3d 774, 783 (8th Cir.2003). “We review the district court’s determination of reasonable suspicion de novo and its findings of historical fact for clear error.” United States v. Jones, 606 F.3d 964, 966 (8th Cir.2010) (per curiam). In this case, we conclude that at the time they commenced the protective search the deputies reasonably could suspect that Stewart was engaged in criminal activity and that he was armed and presently dangerous. The deputies were aware that Stewart had a prior felony conviction and some sort of history involving drugs and violent behavior. See United States v. Winters, 491 F.3d 918, 922 (8th Cir.2007) (considering the totality of circumstances, including officer’s knowledge that the suspect was a prior drug offender, in assessing reasonableness of officer’s suspicion). The encounter occurred late at night in a neighborhood where, according to Deputy Stehlik, suspects had parked their vehicles after previous robberies at the nearby Kwik Shop. Indeed, Stewart had just departed the Kwik Shop parking lot, a location that had suffered “a rash of robberies” and was “a hot spot for a lot of criminal activity.” See United States v. Bailey, 417 F.3d 873, 877 (8th Cir.2005) (“The encounter occurred in [a] neighborhood marked" }, { "docid": "20009736", "title": "", "text": "available to them that “might well elude an untrained person.” United States v. Arvizu, 584 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)(quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690). From the perspective of Officer Helthin-stine, reasonable suspicion certainly existed that McCauley was engaged in criminal activity. He relied on the specific, articu-lable facts relayed to him by Deputy Phillip. These facts, together with reasonable inferences drawn based on his experience as a police officer, led him to correctly conclude that an occupant of the vehicle was engaged in criminal activity. The suspect vehicle was found just minutes after the victim described the SUV’s location and characteristics to Deputy Phillips. Officer Helthinstine observed a vehicle matching the description at a location consistent with the time needed to travel to that point and traveling in a direction consistent with Deputy Phillips’ description of its path. Additionally, the failure of the vehicle to pull over once Officer Helthin-stine activated his lights and the subsequent conduct of appellant provided additional reason for him to conclude that criminal activity was indeed underfoot. In United States v. Hurst, we found that reasonable suspicion existed where there were more occupants in the stopped car than were reported by the dispatcher. 228 F.3d 751, 757 (6th Cir.2000). In Hurst, the victim described the suspect’s car as a “dark-colored Thunderbird” with a broken grill. Id. at 755. Police later stopped the suspect who was driving a dark blue Mercury Cougar and was twenty-five minutes in driving time from the victim’s home. Id. Despite the discrepancies between the actual car stopped and the victim’s description of the car, as well as the fact that the car held a different number of occupants than originally described, we held that reasonable suspicion existed. Id. at 757. Appellant distinguishes the present case by pointing out that the car stopped in Hurst had a broken grill. However, the accompanying facts in this case overcome this distinction. In making a reasonable suspicion determination, we must consider “all circumstances surrounding the actions of a suspected wrongdoer.” United States v. Garza, 10 F.3d" }, { "docid": "19955206", "title": "", "text": "when a police officer subjects a driver to field sobriety tests, and in such instances, the officer must have reasonable suspicion. Wilder v. Turner, 490 F.3d 810, 815 (10th Cir.2007) (“A field sobriety test is a minor intrusion on a driver only requiring a reasonable suspicion of intoxication and an easy opportunity to end a detention before it matures into an arrest.” (citations and internal quotation marks omitted)); see also Sitz, 496 U.S. at 450-51, 110 S.Ct. 2481; Rogala v. Dist. of Columbia, 161 F.3d 44, 52 (D.C.Cir.1998). As we explained in Galindo-Gonzales: Requiring an individualized, reasonable suspicion as a prerequisite to expanding the scope of detentions at fixed checkpoints protects motorists and passengers from random stops involving the kind of standardless and unconstrained discretion -that is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. Galindo-Gonzales, 142 F.3d at 1221 (citation, alteration, and internal quotation marks omitted). Under the reasonable suspicion standard, a police officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). A reasonable suspicion analysis is based upon the “totality of the circumstances,” and “officers [may] draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations and internal quotation marks omitted). “Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Id. at 274, 122 S.Ct. 744 (citations and internal quotation marks omitted). In the context of a § 1983 action, moreover, the officer “is entitled to qualified immunity if a reasonable officer could have believed that [reasonable" }, { "docid": "14949075", "title": "", "text": "v. Goodwin-Bey, 584 F.Sd 1117, 1120 (8th Cir.2009) (“In reexamining the search incident to arrest exception to the warrant requirement, Gant left [the holding in Long ] untouched.” (citing Arizona v. Gant, 556 U.S. -, 129 S.Ct. 1710, 1721, 173 L.Ed.2d 485 (2009))). In considering the reasonableness of an officer’s suspicion, “we must determine whether the facts collectively provide a basis for reasonable suspicion, rather than determine whether each fact separately establishes such a basis.” United States v. Stachowiak, 521 F.3d 852, 856 (8th Cir.2008); see also United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). To be reasonable, suspicion must be based on “specific and articulable facts” that are “taken together with rational inferences from those facts” — that is, something more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 21, 29, 88 S.Ct. 1868; see also Long, 463 U.S. at 1049, 103 S.Ct. 3469. “The behavior on which reasonable suspicion is grounded ... need not establish that the suspect is probably guilty of a crime or eliminate innocent interpretations of the circumstances.” Carpenter, 462 F.3d at 986. Thus, factors that individually may be consistent with innocent behavior, when taken together, can give rise to reasonable suspicion, even though some persons exhibiting those factors will be innocent. Id.-, see also Arvizu, 534 U.S. at 277, 122 S.Ct. 744. “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). And, in this Circuit, the critical inquiry is not whether the searching officer actually feared danger, but whether “a hypothetical officer in the same circumstances could reasonably believe the suspect is dangerous.” United States v. Rowland, 341 F.3d 774, 783 (8th Cir.2003). “We review the district court’s determination of reasonable suspicion de novo and its findings of historical fact for clear error.”" }, { "docid": "15532733", "title": "", "text": "houses, papers, and effects, against unreasonable searches and seizures,” conferred by the Fourth Amendment, is not infringed where police officers conduct an investigative stop, based on reasonable suspicion, of a person suspected of criminal activity. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (quoting U.S. Const, amend. IV). The suspicion that criminal activity is afoot must be both reasonable and articulable, id. at 30, 88 S.Ct. 1868, and an “inchoate and unparticularized suspicion or ‘hunch’ ” of criminal activity is insufficient to justify even a brief detention for the purpose of investigation, id. at 27, 88 S.Ct. 1868. What is required is “some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). In our review of reasonable suspicion determinations, we assess the totality of the circumstances supporting the investigatory stop. Id. at 417-18, 101 S.Ct. 690. We' make such an assessment in order to decide whether the officer’s suspicion of wrongdoing has an objective and particularized basis. Id. An officer may “draw on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to [him] that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal citation omitted). When the noticed presence of officers provokes a suspect’s headlong flight in a high crime area, the officers are justified in suspecting criminal activity on the part of the suspect and a Terry stop is warranted. See Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Under these circumstances, “the determination of reasonable' suspicion [is] based on common sense judgments and inferences about human behavior.” Id. But only “the facts available to the officer at the moment of the seizure” may be evaluated in our review of the determination. Terry, 392 U.S. at 21-22, 88 S.Ct. 1868. Whenever an anonymous tip first alerts police to possible wrongdoing, the question" }, { "docid": "22425256", "title": "", "text": "fled soon thereafter.” Id. at 654. Unlike the defendant in United States v. Valentine, Brown demonstrated more than “momentary ‘compliance’ ” with the arresting officers’ demands. 232 F.3d 350, 359 (3d Cir.2000) (“Even if Valentine paused for a few moments and gave his name, he did not submit in any realistic sense to the officers’ show of authority.”) Brown first yielded to Santiago’s authority by turning to face the police car and placing (or moving to place) his hands on the vehicle. It was only after this initial submission that he began to struggle. B. Was the seizure of Brown based on reasonable suspicion? Having determined when the seizure of Brown occurred, was it based on reasonable, articulable suspicion that Brown and his companion might be the robbery suspects? Terry, 392 U.S. at 19, 88 S.Ct. 1868 (determining reasonableness after establishing moment of seizure). Reasonable suspicion is an “elusive concept,” but it unequivocally demands that “the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An officer’s objective basis for suspicion must be particularized because the “demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” Terry, 392 U.S. at 22 n. 18, 88 S.Ct. 1868. At the same time, we must allow “officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation marks omitted); see also United States v. Nelson, 284 F.3d 472, 476 (3d Cir.2002). “The ultimate question is whether a reasonable, trained officer standing in [Santiago’s] shoes could articulate specific reasons justifying [Brown’s] detention.” Johnson, 332 F.3d at 206. In evaluating whether there was an objective basis for reasonable suspicion, we consider “the totality of the circumstances — the whole picture.” Cortez, 449 U.S." }, { "docid": "19896441", "title": "", "text": "347 (1996) (quoting Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). “[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (citing United States v. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). A lawful traffic stop “may become an impermissible ‘seizure if it occurs over an unreasonable period of time or under unreasonable circumstances.’ ” United States v. Davis, 430 F.3d 345, 354 (6th Cir.2005) (quoting United States v. Orsolini, 300 F.3d 724, 729-30 (6th Cir.2002)). Cf. United States v. Guimond, 116 F.3d 166 (6th Cir.1997). “Reasonable suspicion requires specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the contin ued detention of a motorist after a traffic stop.” See United States v. Perez, 440 F.3d 363, 372 (6th Cir.2006) (quoting United States v. Smith, 263 F.3d 571, 588 (6th Cir.2001)). Reviewing courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations omitted) (holding that a combination of suspicious factors, including a van traveling on a known smuggling route in a remote area, the driver slowing down upon noticing the officer, and the passengers possibly concealing cargo by having their knees raised, all gave rise to reasonable suspicion). The totality of the circumstances analysis permits police officers “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Martin, 289 F.3d 392, 398 (6th Cir.2002). Recently, in United States v. Garrido, 467 F.3d 971 (6th Cir.2006), we upheld, as constitutional, an hour-long safety inspection of a vehicle following a lawful traffic stop. First, we surveyed our previous decisions in this" }, { "docid": "23637539", "title": "", "text": "to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Id. (internal quotation marks omitted). Furthermore, “[w]hen making a determination of reasonable suspicion, we must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” Id. (internal quotation marks removed). Adopting this perspective is important, as the Supreme Court has observed, because it “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations and quotation marks omitted). Here, Officer Maldonado’s suspicion that the defendant was engaged in a hand-to-hand drug transaction was sup ported by several specific, objective, and articulable facts. First, Lopez-Garcia’s vehicle was stopped in the roadway; second, the activity took place in a high-crime area known specifically for street-level, hand-to-hand drug transactions; third, an unknown person was seen leaning into the window and having a conversation with the defendant; .and fourth, once they saw Officer Maldonado, the individual abruptly withdrew from the car window, and Lopez-Garcia began to drive away. Taking all of these facts in concert, we are satisfied that Officer Maldonado had reasonable suspicion to stop Lopez-Garcia’s vehicle. See also United States v. Briggman, 931 F.2d 705, 707, 709 (11th Cir.1991) (officer had reasonable suspicion to stop driver sitting in parked car with headlights on in the early morning hours in a lot near several businesses that had recently been robbed). The district court was surely correct in observing that a defendant’s presence in a high-crime area, .standing alone, is insufficient to establish reasonable suspicion. But Maldonado’s suspicion was not just based on the area in which the conduct was observed; it was also based on specific features of the individuals’ conduct. Nor does the fact that Officer Maldonado never witnessed any actual exchange between Lopez-Garcia and his brother-in-law preclude a finding" }, { "docid": "19896442", "title": "", "text": "(6th Cir.2001)). Reviewing courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations omitted) (holding that a combination of suspicious factors, including a van traveling on a known smuggling route in a remote area, the driver slowing down upon noticing the officer, and the passengers possibly concealing cargo by having their knees raised, all gave rise to reasonable suspicion). The totality of the circumstances analysis permits police officers “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Martin, 289 F.3d 392, 398 (6th Cir.2002). Recently, in United States v. Garrido, 467 F.3d 971 (6th Cir.2006), we upheld, as constitutional, an hour-long safety inspection of a vehicle following a lawful traffic stop. First, we surveyed our previous decisions in this area: Compare United States v. Richardson, 385 F.3d 625, 630-31 (6th Cir.2004) (concluding that the- motorists’ nervousness, their allegedly conflicting explanations of travel plans, and the movement of one from the back to the driver’s seat did not suffice to create a reasonable suspicion); [United States v.] Townsend, 305 F.3d [537] at 542-45 [(6th Cir.2002)] (finding that ten factors, including dubious travel plans, three cell phones in the car, and the driver’s history of weapons offenses, did not rise to the level of a reasonable suspicion); and [United States v.] Smith, 263 F.3d [571] at 588-94 (concluding that nine factors, including the stoned appearance of one vehicle occupant, food wrappers in the car, and the nervousness of the occupants, did not establish a reasonable suspicion); with United States v. Davis, 430 F.3d 345, 355-56 (6th Cir.2005) (holding that a driver’s meeting with a known drug dealer justified continued detention until a drug-sniffing dog could arrive, but that additional detention after the dog failed to alert was unreasonable); [United States v.] Hill, 195 F.3d [258] at" }, { "docid": "9877925", "title": "", "text": "744, 151 L.Ed.2d 740 (2002) (citations omitted) (holding that a combination of suspicious factors, including a van traveling on a known smuggling route in a remote area, the driver slowing down upon noticing the officer, and the passengers possibly concealing cargo by having their knees raised, all gave rise to reasonable suspicion). Moreover, “the totality of the circumstances approach allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Martin, 289 F.3d 392, 398 (6th Cir.2002) (interpreting the Supreme Court’s then-recent decision in Arvizu). A district court’s determination that the officers had a reasonable suspicion is a mixed question of law and fact that we review de novo. United States v. Townsend, 305 F.3d 537, 541 (6th Cir.2002). In determining that the officers had a reasonable suspicion to believe that Garri-do was involved in criminal activity, the district court relied on the eight factors set forth in Part I.B. above. The district court essentially concluded that these factors diverged so significantly from what normally occurs during a stop and inspection of a commercial bobtail tractor that the officers were justified in concluding that something was amiss. This court’s most recent precedents are inconclusive on this issue. Compare United States v. Richardson, 885 F.3d 625, 630-31 (6th Cir.2004) (concluding that the motorists’ nervousness, their allegedly conflicting explanations of travel plans, and the movement of one from the back to the driver’s seat did not suffice to create a reasonable suspicion); Townsend, 305 F.3d at 542-45 (finding that ten factors, including dubious travel plans, three cell phones in the car, and the driver’s history of weapons offenses, did not rise to the level of a reasonable suspicion); and Smith, 263 F.3d at 588-94 (concluding that nine factors, including the stoned appearance of oné vehicle occupant, food wrappers in the car, and the nervousness of the occupants, did not establish a reasonable suspicion); with United States v. Davis, 430 F.3d 345, 355-56 (6th Cir.2005) (holding that a driver’s meeting" }, { "docid": "10312049", "title": "", "text": "the detainee, the officer’s use of a commanding tone of voice, and the officer’s use of intimidating body language.” Id. “An officer is not required to inform a suspect that she does not have to respond to his questioning or that she is free to leave.” United States v. Bradford, 423 F.3d 1149, 1158 (10th Cir.2005). But an officer may detain a driver beyond the scope of the traffic stop if, during the stop, “(1) the officer develops an objectively reasonable and articulable suspicion that the driver is engaged in some illegal activity, or (2) the initial detention becomes a consensual encounter.” Rosborough, 366 F.3d at 1148 (quotation and alterations omitted). To determine whether an officer has a reasonable suspicion to detain beyond the scope of the traffic stop, we “must look at the totality of the circumstances of each case to see whether the detaining officer has 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) (quotations omitted). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” Id. (quotation omitted). While reasonable suspicion cannot be based upon a “mere hunch,” it also “need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Id. at 274, 122 S.Ct. 744. Our cases have identified a number of factors that may contribute to an officer’s reasonable suspicion of illegal activity justifying detention. One factor is an individual’s internally inconsistent statements or the inconsistencies between a passenger and driver’s statements regarding travel plans. See United States v. Simpson, 609 F.3d 1140, 1148 (10th Cir.2010) (“Implausible travel plans can contribute to reasonable suspicion.”); United States v. White, 584 F.3d 935, 951 (10th Cir.2009) (“We have noted numerous times that implausible travel plans can form a basis for reasonable suspicion.”); United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998) (“Among those factors" }, { "docid": "5143522", "title": "", "text": "the agents lacked reasonable suspicion to stop Bautista-Silva’s vehicle because Agent Cole’s decision to stop the vehicle was based on specific and articulable facts that, viewed cumulatively and in the light of Agent Cole’s extensive experience, created a reasonable suspicion that the vehicle contained illegal aliens. The government argues that the district court erred because, although the court acknowledged its duty to consider the totality of the circumstances, the court “analyzed the facts in isolation, strained to find innocent explanations for those facts, and failed to view those facts through the eyes of an experienced Border Patrol agent.” We agree. The record establishes that Agent Cole reasonably suspected that Bautista-Silva’s vehicle contained illegal aliens. “[W]hen an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion.” United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). Although “[t]he reasonable suspicion must be more than an inchoate and unparticularized suspicion or hunch,” United States v. Powell, 222 F.3d 913, 917 (11th Cir.2000) (internal quotation marks omitted), “the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 751, 151 L.Ed.2d 740 (2002). The officer’s reasonable suspicion must be based on “specific articulable facts, together with rational inferences from those facts.” Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. at 2582. To determine whether Agent Cole had reasonable suspicion to stop Bautista-Silva’s vehicle, we “must look at the totality of the circumstances ... to see whether the [agent] ha[d] a particularized and objective basis for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273, 122 S.Ct. at 750 (internal quotation marks omitted). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” Id. at" }, { "docid": "19955207", "title": "", "text": "officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). A reasonable suspicion analysis is based upon the “totality of the circumstances,” and “officers [may] draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations and internal quotation marks omitted). “Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Id. at 274, 122 S.Ct. 744 (citations and internal quotation marks omitted). In the context of a § 1983 action, moreover, the officer “is entitled to qualified immunity if a reasonable officer could have believed that [reasonable suspicion] existed to ... detain the plaintiff’—i.e., if the officer had “arguable reasonable suspicion.” Cortez, 478 F.3d at 1120, 1123. Vondrak’s statement that he “had one beer three hours ago” provided McCants with reasonable suspicion to conduct the field sobriety tests, or at the very least provided her with “arguable reasonable suspicion” entitling her to qualified immunity. See United States v. Slater, 411 F.3d 1003, 1004, 1006 (8th Cir.2005) (“Jones’s admission that he had been drinking [‘a couple drinks’] earlier that evening gave Officer Perry reasonable suspicion to extend the stop while Jones completed the sobriety tests.”); see also Miller v. Harget, 458 F.3d 1251, 1259 (11th Cir.2006) (“[W]hen Officer Harget smelled alcohol coming from the vehicle Mr. Miller had been driving, he had reasonable suspicion to detain Mr. Miller in order to investigate.”); United States v. Neumann, 183 F.3d 753, 756 (8th Cir.1999) (“The detection of alcohol on Neumann’s breath provided Kayras with a reasonable suspicion to further detain Neumann and expand the scope of the investigation.”); United States v. Caine, 517 F.Supp.2d 586," }, { "docid": "23683739", "title": "", "text": "conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Wardlow, 528 U.S. at 123, 120 S.Ct. 673. To determine whether reasonable suspicion exists, we must consider the “ ‘totality of the circumstances — the whole picture.’ ” United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)); see also United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) (“This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” (quotation and citation omitted)). In United States v. Nelson, 284 F.3d 472 (3d Cir.2002), we described Arvizu as follows: “In the Supreme Court’s most recent pronouncement on the Fourth Amendment reasonable suspicion standard, it accorded great deference to the officer’s knowledge of the nature and the nuances of the type of criminal activity that he had observed in his experience, almost to the point of permitting it to be the focal point of the analysis.” Id. at 482. Moreover, we are appropriately reluctant to “second-guess” investigative decisions made by officers in hot pursuit of criminal suspects. E.g., United States v. Valentine, 232 F.3d 350, 355 (3d Cir.2000) (“The officers knew the suspect was still in the vicinity, and had they stalled for more lengthy questioning of the informant, the armed suspect could have escaped detection.”), cert. denied, 532 U.S. 1014, 121 S.Ct. 1748, 149 L.Ed.2d 670 (2001); United States v. Brown, 159 F.3d 147, 149 (3d Cir.1998) (“A police officer may conduct a warrantless stop and frisk if specific and articulable facts, together with all rational inferences, suggest that the suspect was involved in criminal activity.”) (summarizing Terry). The Supreme Court has held “the determination of reasonable suspicion must be made on common sense judgments and inferences about human behavior.” Wardlow, 528 U.S. at 125, 120 S.Ct. 673. IV. The District Court found" }, { "docid": "23637538", "title": "", "text": "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this provision.” Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). It is by now well established that a “law enforcement officer may conduct a brief investigative stop of a vehicle, analogous to a Terry-stop, if the seizure is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” United States v. Harris, 928 F.2d 1113, 1116 (11th Cir.1991) (internal quotation marks omitted). An “inchoate and unparticularized suspicion or hunch of criminal activity” is not sufficient to meet the reasonable suspicion standard. United States v. Yuknavich, 419 F.3d 1302, 1311 (11th Cir.2005) (internal quotation marks omitted). Rather, an “officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Id. (internal quotation marks omitted). Furthermore, “[w]hen making a determination of reasonable suspicion, we must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” Id. (internal quotation marks removed). Adopting this perspective is important, as the Supreme Court has observed, because it “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations and quotation marks omitted). Here, Officer Maldonado’s suspicion that the defendant was engaged in a hand-to-hand drug transaction was sup ported by several specific, objective, and articulable facts. First, Lopez-Garcia’s vehicle was stopped in the roadway; second, the activity took place in a high-crime area known specifically for street-level," }, { "docid": "2248244", "title": "", "text": "— that the defendants were engaged in criminal activity. See, e.g., United States v. Rivas, 157 F.3d 364, 367 (5th Cir.1998). “Reasonable suspicion is more than an ill-defined hunch; 'it must be based upon a particularized and objective basis for suspecting the particular person ... of criminal activity.’ ” United States v. Richardson, 385 F.3d 625, 630 (6th Cir.2004) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). In evaluating whether the totality of the circumstances supports the conclusion that reasonable suspicion exists, courts must allow officers to draw upon their experience and training to make inferences. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Here, the record establishes that Cover-stone knew the following facts when he decided to detain the van until after he spoke with Servin: (1) that Reynaga acted nervously in response to his questions; (2) that the van was from Washington state and had tinted windows; (3) that Reynaga was unable to provide the last name of the van’s owner (though she did provide a reason, ie. a recent marriage); and (4) that Reynaga’s description of her travel plans were vague. With respect to the travel plans, Coverstone was suspicious about Reynaga’s claim that she had flown from Los Angeles to Vancouver, Washington to get the van earlier that week, yet could not remember the flight details. Under the totality of the circumstances, we believe that the foregoing facts are sufficient to establish reasonable suspicion that the van was unlawfully possessed, thereby justifying the questioning of a passenger (i.e. the defendant Servin). In United States v. Garrido, 467 F.3d 971 (6th Cir.2006), we surveyed the case law applying the reasonable suspicion framework: Compare United States v. Richardson, 385 F.3d 625, 630-31 (6th Cir.2004) (concluding that the motorists’ nervousness, their allegedly conflicting explanations of travel plans, and the movement of one from the back to the driver’s seat did not suffice to create a reasonable suspicion); United States v. Townsend, 305 F.3d 537 at 542-45 (finding that ten factors, including dubious travel plans," }, { "docid": "12633386", "title": "", "text": "activity is determined in light of the totality of the circumstances.” United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir.1994). “To be reasonable, the suspicion must be more than an ‘inchoate and unparticularized suspicion or “hunch”.’ ” Id. (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). However, officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Hurd argues that the officers did not reasonably suspect that he was engaged in criminal activity in making the stop. Hurd contends that a generalized fear of criminal activity and the presence of a suspect in a high-crime area are insufficient to justify seizure. He argues that Officer Martin’s testimony that “it seemed odd, and it kind of seemed to me like maybe it was a narcotics transaction” was merely a generalized suspicion and did not justify the stop. The district court found that the Terry stop was lawful, relying on (1) the fact that the car was parked in the middle of the road with an individual standing outside next to the driver’s side window; (2) the fact that it was the middle of the' night on a dark street in a poorly-lit area with no houses or businesses around; (3) the fact that it was cold, therefore unusual for a person to be standing outside; and (4) the fact that the stop happened in a higher crime area known for narcotics transactions. Officer Martin testified that his experience as a police officer, along with the factors he witnessed, provided a reasonable, articulable suspicion that a hand-to-hand drug transaction was underway. A district court’s findings regarding credibility of witnesses are entitled to great deference and are virtually unreviewable. United States v. Wright, 739 F.3d 1160, 1166-67 (8th Cir.2014) (citations and internal quotations omitted). We conclude that the totality of" } ]

[ { "docid": "19674624", "title": "", "text": "evident from the length of the sentence imposed. In others, the judgment of conviction or plea colloquy will list the prior record level. Finally, in those cases where the relevant records do not indicate the defendant’s prior record level, “it may well be that the Government will be precluded from establishing that a conviction was for a qualifying offense.” Id. at 1791. Finally, we recognize that our decision here is in some tension with holdings of the Fourth Circuit. That circuit has held, in the context of the same North Carolina sentencing scheme, that “to determine whether a conviction is for a crime punishable by a prison term exceeding one year, ... we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” See United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005). Harp, however, was decided prior to Rodriquez. But see United States v. Lemons, 280 Fed.Appx. 258 (4th Cir. 2008) (post-Rodriquez case relying on Harp with no discussion of Rodriquez). And because Rodriquez persuades us that it is necessary to consider the defendant’s particular prior record level — and not merely the worst prior record level — in determining whether a conviction was for an offense “punishable” by a term exceeding one year for purposes of §§ 4B1.1 and 4B1.2, we conclude that the district court in this case committed procedural error in calculating Pruitt’s sentencing guidelines range. See Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We note that the district court’s sentencing determination was obviously made without benefit of the later Rodriquez decision. For the foregoing reasons, Pruitt’s sentence must be vacated and remanded. The record is not sufficient for this court to determine whether, at the time of each of Pruitt’s two North Carolina convictions, Pruitt’s prior record level was high enough to warrant a sentence exceeding one year. Additionally, the record indicates that the two convictions at issue here may not be the only prior convictions that potentially qualify as predicate convictions under § 4B1.1." } ]

[ { "docid": "22613478", "title": "", "text": "90-95(a). In my view, that ends our inquiry. AGEE, Circuit Judge, dissenting: The majority opinion correctly identifies the issue on appeal in this case: whether the analysis set forth in United States v. Harp, 406 F.3d 242 (4th Cir.2005), remains good law in light of the Supreme Court’s decisions in United States v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008), and Carachuri-Rosendo v. Holder,- U.S. -, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) (“Carachuri”). Cf. Maj. op. at 241. Because I do not find that either decision compels a result contrary to the plain language of the relevant statutes, I find no error in imposition of an enhanced sentence under 21 U.S.C. § 841(b)(1)(D) and would affirm the district court’s judgment that Simmons’ prior North Carolina state conviction constituted a “felony drug offense” as defined in 21 U.S.C. § 802(44). I. The proper starting point is the relevant statutory language. Jimenez v. Quarterman, 555 U.S. 113, 118, 129 S.Ct. 681, 685, 172 L.Ed.2d 475 (2009) (“As with any question of statutory interpretation, our analysis begins with the plain language of the statute.”) (citation omitted); Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (“The starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter.”) (quotation and citation omitted). Twenty-one U.S.C. § 841(b)(1)(D) provides that any person convicted of possession with intent to distribute less than 50 kilograms of marijuana “after a prior conviction for a felony drug offense has become final, shall be sentenced to a term of imprisonment of not more than 10 years____” As defined by Congress, a “felony drug offense” is “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State.... ” 21 U.S.C. § 802(44). Thus, in order for Simmons to be subject to the enhanced sentencing provisions of § 841(b)(1)(D), he must have “a prior conviction for” “an offense that is punishable by imprisonment for more than" }, { "docid": "4036870", "title": "", "text": "Harp was no longer good law. With respect to sentencing, we expressed no opinion regarding whether Kerr’s prior state convictions qualified as predicate felonies. On remand, Kerr’s counsel filed a motion asking the court to vacate Kerr’s conviction and dismiss the indictment. Prior to resentencing, the probation officer prepared a supplement to the original presen-tence investigation report, concluding that Kerr’s 2008 state breaking and entering convictions were each punishable by a presumptive maximum sentence of 14 months’ imprisonment and thus qualified as ACCA predicates. The district court denied counsel’s motion to vacate and dismiss. Agreeing that the prior breaking and entering convictions qualified as ACCA-pred-icate crimes, the court again sentenced Kerr to 268 months’ imprisonment. This appeal followed. II. A. We review de novo the question of whether a prior state conviction is a predicate felony for the purposes of federal criminal law. See United States v. Jones, 667 F.3d 477, 482 (4th Cir.2012). In order for a defendant to be sentenced as an armed career criminal on a felon-in-possession conviction, the defendant must have a combination of three convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e). A violent felony is a crime of violence punishable by a term exceeding one year of imprisonment. 18 U.S.C. § 924(e)(2)(B). B. To properly analyze Kerr’s arguments, we must first review his 2008 state convictions under the sentencing regime mandated by North Carolina’s statutory framework. North Carolina’s Structured Sentencing Act directs a judge to impose felony sentences based on two criteria: the designated offense class and the offender’s prior record level. N.C. Gen.Stat. § 15A-1340.13(b). The Act, or in certain cases a different statute, sets forth the offense class. Id. § 15A-1340.17(a). The sentencing judge calculates the offender’s prior record level by adding the points assigned to each of the offender’s prior convictions. Id. § 15A-1340.14(a)-(b). Next, the judge matches the offense class and prior record level using a statutory table, which provides three sentencing ranges — a mitigated range, a presumptive range, and an aggravated range. Id. § 15A-1340.17(c). As a default, the judge sentences the defendant within" }, { "docid": "22613454", "title": "", "text": "(characterizing this as a holding). To be sure, in Rodriquez the Court also rejected the argument that “guidelines systems,” which “typically allow a sentencing judge to impose a sentence that exceeds the top of the guidelines range,” serve to “decrease the ‘maximum term’ of imprisonment.” 553 U.S. at 390, 128 S.Ct. 1783. On the basis of this observation, the Government argues that Rodriquez forbids us from relying on the Structured Sentencing Act to “decrease the maximum term of imprisonment” Simmons could have served. But the Act does not establish a “guidelines system[ ]”; rather, it mandates specific sentences. See State v. Norris, 360 N.C. 507, 630 S.E.2d 915, 917-18 (2006). Thus, we do not rely on the Act to “decrease” the maximum term of imprisonment Simmons could have served, but rather to establish that maximum term of imprisonment. For, unlike the sort of “guidelines systems” referred to in Rodriquez, no circumstances exist under the Structured Sentencing Act in which a North Carolina judge may “impose a sentence that exceeds the top” of the “range” set forth in the Act. Rodriquez, 553 U.S. at 390, 128 S.Ct. 1783. Our conclusion that the Act serves as a legislative mandate and not as a “guidelines system[]” accords with that of the other courts of appeal to have considered this question. See United States v. Haltiwanger, 637 F.3d 881 (8th Cir.2011); United States v. Pruitt, 545 F.3d 416 (6th Cir.2008). In Pruitt, the Sixth Circuit assessed the impact of Rodriquez on North Carolina predicate convictions under ACCA, and it found “no reasonable basis on which to distinguish the North Carolina” Act from “the recidivism enhancement provision at issue in Rodriquez.” Id. at 423. The Pruitt court thus concluded that “it is necessary to consider the defendant’s particular prior record level — and not merely the worst prior record level — in determining whether a conviction was for an offense ‘punishable’ by a term exceeding one year.” Id. at 424. Although in our earlier unpublished opinion in this case we held that Rodriquez did not require rejection of the Harp rule, the Sixth Circuit’s'analysis now" }, { "docid": "23078255", "title": "", "text": "prior offenders who actually faced one-year-plus sentences are prosecutable under 18 U.S.C. § 922(g)(1) for being felons in possession of a firearm. See, e.g., United States v. Parker, 465 Fed.Appx. 283, 284-85 (4th Cir.2012) (citing Simmons, 649 F.3d at 243-45). Until Carachuri, however, enhanced 21 U.S.C. § 841(b) penalties and 18 U.S.C. § 922(g)(1) criminal liability were afforded a much broader sweep, extending to prior offenders whose convictions would have qualified a hypothetical “defendant with the worst possible criminal history” for a sentence above one year. See United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005). As such, Carachuri revealed that many defendants whose cases were adjudicated under the old Harp regime were “convicted of an act that the law does not make criminal or [received] a punishment that the law cannot impose upon [them].” See Schriro, 542 U.S. at 352, 124 S.Ct. 2519 (internal quotation marks omitted). The only proper conclusion for our Court to reach, then, is that Carachuri resulted in a “[n]ew substantive rule[ ]” retroactively applicable to qualifying cases on collateral review. See id. at 351, 124 S.Ct. 2519; see also United States v. Thomas, 627 F.3d 534, 536 (4th Cir.2010) (recognizing that 28 U.S.C. § 2255(f)(3) “does not require that the initial retroactivity question be decided in the affirmative only by the Supreme Court”). l. The substantive nature of the Carachuri rule is perhaps most readily apparent in the context of 18 U.S.C. § 922(g)(1) (criminalizing firearm possession by a convicted felon, i.e., “any person ... who has been convicted in any court of[ ] a crime punishable by imprisonment for a term exceeding one year”). Because it narrows the definition of a convicted felon under § 922(g)(1) — from Harp’s any prior offender whose conviction would have qualified a hypothetical recidivist for more than one year of imprisonment, to only those prior offenders who actually faced such a sentence — Carachuri proclaimed “a new substantive right which must be applied retroactively to cases on collateral review for purposes of [28 U.S.C.] § 2255(f)(3).” See Thomas, 627 F.3d at 538 (relying on Schriro v." }, { "docid": "4036884", "title": "", "text": "was sentenced for the three 2008 breaking and entering convictions, the Act's statutory charts were amended to increase the maximum sentences. See Justice Reinvestment Act of 2011, 2011 N.C. Sess. Laws 192 §§ 2(e)-(f). . Kerr does not contest that these convictions were for crimes of violence. . Edmonds conceded that one of his prior convictions at issue was a qualifying predicate felony. 679 F.3d at 176. . The dissent says that it does not argue \"for an assessment of the defendant’s actual sentence” but rather \"for an assessment of the defendant's actual sentencing range.” Dis. op. at 43 n. 1. In our view, however, this is a distinction without a difference, as both are inconsistent with the reasoning of Simmons and Edmonds. . Our holding today is not, as the dissent paints it, \"Harp redux,” nor is it paradoxical. Harp summarily branded every defendant facing an ACCA enhancement for his prior North Carolina convictions as the worst possible offender under North Carolina's sentencing scheme. While Simmons rejected that hypothetical approach to federal sentencing, we subsequently made clear \"that the qualification of a prior conviction [as a predicate offense] does not depend on the sentence [a defendant] actually received but on the maximum sentence that he could have received for his conviction.” Edmonds, 679 F.3d at 176. Our decision today flows from a straightforward application of our precedent. .We asked the parties to brief whether the mandate rule foreclosed the district court, on remand, from considering Kerr's challenge to his conviction. Both parties contend that the mandate rule does not foreclose this argument, and we agree. DAVIS, Circuit Judge, dissenting: Respectfully, I dissent. The majority opinion runs counter to Supreme Court precedent, Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), and effectively guts our Circuit precedent, United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). It violates principles' of comity and federalism by directing federal district courts to' ignore the careful sentencing decisions of their state counterparts. And it goes to such lengths all to affirm a twenty-two-year sentence imposed on a" }, { "docid": "20135722", "title": "", "text": "sentence, the defendant must have been convicted of “an offense that is punishable by imprisonment for more than one year under any [federal or state law] that prohibits or restricts conduct relating to narcotic drugs.” Id. Iberson conceded that he was previously convicted in Guilford County, North Carolina, of separate counts of possession of cocaine and heroin, in violation of North Carolina law. N.C. Gen.Stat. § 90-95(a)(3), (d)(2) (2005). The state court sentenced him to a consolidated term of six to eight months imprisonment on both counts. The prison term was suspended, and Iberson was placed on supervised probation for thirty-six months. These offenses are called Class I felonies under North Carolina law. Iberson argued, however, that he was not eligible for a sentence of more than eight months under North Carolina law, because he had no prior record and his offenses fell within the “presumptive” range of disposition. See N.C. Gen Stat. 15A-1340.17(c) (2005). I denied Iberson’s objection. United States v. Iberson, No. 1:07CR00008, 2007 WL 1472064 (W.D.Va. May 21, 2007). In so doing, I relied on decisions of the United States Court of Appeals for the Fourth Circuit, indicating that I should follow a generic rather than an individualized approach in determining the possible punishment for the state offenses. See, e.g., United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005). Under the North Carolina sentencing scheme, it is possible for a defendant convicted of a Class I felony to be sentenced to up to fifteen months imprisonment. See N.C. Gen.Stat. § 15A-1340.17(d) (2005). I relied on the reasoning in Harp, that “if any defendant charged with that crime could receive a sentence of more than one year,” then the offense is punishable by imprisonment for more than one year. Harp, 406 F.3d at 246 (citing United States v. Jones, 195 F.3d 205, 206-07 (4th Cir.1999)). Although the Harp and Jones decisions did not construe § 802(44), I found these cases to be persuasive because they interpreted similar language in other sentencing contexts. In addition, there was a nonprecedential Fourth Circuit opinion on point. See United States v." }, { "docid": "12418018", "title": "", "text": "because the maximum statutory penalty of 16 months remained unchanged. The court therefore applied the enhancement and sentenced Valdovinos to 27 months in prison. This appeal followed. II. Valdovinos contends that the district court erred in enhancing his sentence on the basis of his prior state conviction. As he argued in the district court, Valdovi-nos again claims that, due to his plea agreement, his North Carolina conviction was not punishable by more than a year in prison and therefore does not qualify as a felony under Section 2L1.2(b)(l)(B) of the Guidelines. We review de novo the question whether a prior state conviction constitutes a predicate felony conviction for purposes of a federal sentence enhancement. United States v. Jones, 667 F.3d 477, 482 (4th Cir.2012). A. Our approach to determining whether a prior North Carolina conviction was punishable by a prison term exceeding one year (and thus constitutes a federal sentencing predicate) has changed in recent years. We once answered that question by considering “the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005). As a result, many defendants who, based on their own criminal histories, could not possibly have been sentenced to prison for more than a year were deemed to have been convicted of predicate felonies and so sentenced to enhanced federal prison terms. We faithfully followed that precedent in numerous cases, including United States v. Simmons, 340 Fed.Appx. 141 (4th Cir.2009). In 2010, however, the Supreme Court decided Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). The Court held in Caraehuri that, for purposes of the Immigration and Nationality Act, a prior conviction constitutes an “aggravated felony” — i.e., a crime for which the maximum term of imprisonment exceeds one year — only if the defendant was “actually convicted of a crime that is itself punishable as a felony under federal law.” Id. at 582, 130 S.Ct. 2577. The Court explained that whether the defendant’s conduct underlying his prior conviction hypothetically could have" }, { "docid": "9280999", "title": "", "text": "Guidelines (\"Guidelines\") range would have been 70-87 months, and his statutory sentencing range would have been 5 to 40 years. The district court noted, \"[T]he sentence that is required to be imposed upon you is a harsh sentence. It's a mandatory minimum sentence. I don't have any discretion in that area.\" J.A. 85-86. We affirmed Appellant's conviction and sentence. See United States v. Wheeler , 329 Fed.Appx. 481 (4th Cir. 2009) (per curiam). B. First § 2255 Motion On June 29, 2010, Appellant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He alleged that his counsel was ineffective for, inter alia, failing to argue that the 1996 Conviction did not qualify to enhance his sentence. See J.A. 116-17 (\"[C]ounsel in this matter[ ] allowed an error to proceed uncorrected.... The term of [the 1996 Conviction] didn't exceed one year[;] the maximum punishment that he could receive was[ ] eight months....\"). The district court dismissed the § 2255 motion on March 17, 2011, and denied a certificate of appealability (\"COA\"), explaining that Appellant's argument was foreclosed by this court's decision in United States v. Harp , 406 F.3d 242 (4th Cir. 2005), and this court's panel decision in United States v. Simmons , 635 F.3d 140 (4th Cir. 2011). See J.A. 204. Those decisions held, \"[T]o determine whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law], ... we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.\" Harp , 406 F.3d at 246 (second emphasis supplied); see also Simmons , 635 F.3d at 146. Thus, the district court reasoned that although Appellant received a sentence of six to eight months for the 1996 Conviction, \"his offense was punishable by imprisonment for more than a year\" because it was a Class I felony, which carries a maximum sentence of 15 months. J.A. 204. Thus, \"[a]ny challenge [to the 1996 Conviction] made by Petitioner's counsel would have failed.\" Id . Appellant filed" }, { "docid": "9281000", "title": "", "text": "of appealability (\"COA\"), explaining that Appellant's argument was foreclosed by this court's decision in United States v. Harp , 406 F.3d 242 (4th Cir. 2005), and this court's panel decision in United States v. Simmons , 635 F.3d 140 (4th Cir. 2011). See J.A. 204. Those decisions held, \"[T]o determine whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law], ... we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.\" Harp , 406 F.3d at 246 (second emphasis supplied); see also Simmons , 635 F.3d at 146. Thus, the district court reasoned that although Appellant received a sentence of six to eight months for the 1996 Conviction, \"his offense was punishable by imprisonment for more than a year\" because it was a Class I felony, which carries a maximum sentence of 15 months. J.A. 204. Thus, \"[a]ny challenge [to the 1996 Conviction] made by Petitioner's counsel would have failed.\" Id . Appellant filed a pro se motion to reconsider, again contending that the 1996 Conviction did not qualify as a felony drug offense. And again, the district court denied the motion. Appellant filed a notice of appeal on April 14, 2011, and a motion for COA with this court on August 3, 2011. While the motion for COA was pending, this court, sitting en banc, overturned the panel decision in Simmons . See United States v. Simmons , 649 F.3d 237 (4th Cir. 2011) (en banc) (hereinafter \" Simmons \"). We determined that \"in deciding whether a sentencing enhancement was appropriate under the Controlled Substances Act, a district court could no longer look to a hypothetical defendant with the worst possible criminal history. Instead, ... a sentencing court may only consider the maximum possible sentence that the particular defendant could have received.\" United States v. Kerr , 737 F.3d 33, 37 (4th Cir. 2013) (emphasis in original) (discussing Simmons , 649 F.3d at 246-47 & n.9 ). Thus, what matters is the potential maximum sentence to which a" }, { "docid": "2778725", "title": "", "text": "granted certiorari and remanded the case, without opinion, “for further consideration in light of Carachuri-Rosendo.” Simmons v. United States, 561 U.S. 1001, 130 S.Ct. 3455, 177 L.Ed.2d 1048 (2010). On remand, the same panel concluded Carachuri-Rosendo did not implicate its prior analysis. See United States v. Simmons, 635 F.3d 140 (4th Cir.2011). After en banc rehearing, however, the Fourth Circuit also reversed course. According to an eight-judge majority, the Fourth Circuit precedent holding similarly to Hill — United States v. Harp, 406 F.3d 242 (4th Cir.2005) — was no longer good law under Carachuri-Rosendo. See Simmons, 649 F.3d at 239-50. Explicitly tracking Haltiwanger, the Fourth Circuit held that “ ‘where a maximum term of imprisonment ... is directly tied to recidivism,’ the ‘actual recidivist finding ... must be part of a particular defendant’s record of conviction for the conviction to qualify as a felony.’ ” Id. at 244 (quoting Haltiwanger, 637 F.3d at 884). Five dissenters found the Simmons majority’s holding to be “contrary to the plain language of the relevant statutes,” which differed “in critical respects” from the immigration statutes at issue in Carachuri-Rosendo. Id. at 250, 253. More specifically, this dissent argued the phrase “offense punishable by more than one year imprisonment” clearly calls for an offense-specific analysis rather than a defendant-specific analysis. Id. at 258. “As such,” the dissent concluded, “we [should] follow the mandate of Congress to look to the maximum authorized punishment for any defendant convicted of the offense.” Id. (emphasis added). Although we are not unsympathetic to the dissent’s appeal to plain language, we are not analyzing this case in a vacuum. Rather, Supreme Court precedent binds us. And we simply cannot ignore Carachuri-Rosendo’& unambiguous clarification of Rodriquez that directly contradicts our view of Rodriquez in Hill. We also cannot ignore the Supreme Court’s subsequent remands to the Fourth and Eighth Circuits with instruction to analyze markedly similar issues “in light of Carachuri-Rosendo.” Certainly, such remands are not “final determination[s] on the merits” by the Supreme Court. Tyler v. Cain, 533 U.S. 656, 666 n. 6, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). They" }, { "docid": "22613455", "title": "", "text": "forth in the Act. Rodriquez, 553 U.S. at 390, 128 S.Ct. 1783. Our conclusion that the Act serves as a legislative mandate and not as a “guidelines system[]” accords with that of the other courts of appeal to have considered this question. See United States v. Haltiwanger, 637 F.3d 881 (8th Cir.2011); United States v. Pruitt, 545 F.3d 416 (6th Cir.2008). In Pruitt, the Sixth Circuit assessed the impact of Rodriquez on North Carolina predicate convictions under ACCA, and it found “no reasonable basis on which to distinguish the North Carolina” Act from “the recidivism enhancement provision at issue in Rodriquez.” Id. at 423. The Pruitt court thus concluded that “it is necessary to consider the defendant’s particular prior record level — and not merely the worst prior record level — in determining whether a conviction was for an offense ‘punishable’ by a term exceeding one year.” Id. at 424. Although in our earlier unpublished opinion in this case we held that Rodriquez did not require rejection of the Harp rule, the Sixth Circuit’s'analysis now seems clearly correct given the Supreme Court’s subsequent ruling in Carachuri. See 130 S.Ct. at 2587 n. 12. Our determination that Carachuri undermines our previous approach mirrors that made in Haltiwanger. There, the Eighth Circuit analyzed whether a prior conviction for a violation of Kansas law qualified as a “felony drug offense” under 21 U.S.C. § 841(b)(1). 637 F.3d at 882-83. As in North Carolina, the “Kansas sentencing structure ties a particular defendant’s criminal history to the maximum term of imprisonment.” Id. at 884. The Eighth Circuit initially upheld a sentencing enhancement by looking to the “maximum penalty that could be imposed for the same crime on other recidivist offenders,” but the Supreme Court vacated and remanded for reconsideration in light of Carachuri. Id. at 882-83. Upon reconsideration, the Eighth Circuit reversed course and held that “where a maximum term of imprisonment ... is directly tied to recidivism,” the “actual recidivist finding ... must be part of a particular defendant’s record of conviction for the conviction to qualify as a felony.” Id. at 884. 2." }, { "docid": "4036868", "title": "", "text": "challenge his conviction on the basis that he lacked a predicate felony. We disagree with Kerr’s first two arguments and find that the third one is moot. We therefore affirm the district court’s judgment. I. Kerr was charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e). The indictment alleged that, for the purposes of the ACCA, Kerr had previously been convicted of three violent felonies or serious drug offenses punishable by imprisonment for a term greater than one year. The record establishes that Kerr had three 2008 North Carolina state convictions for felony breaking and entering. Following a jury trial, Kerr was convicted of possession of a firearm by a convicted felon. At his sentencing hearing, Kerr objected to his designation as an armed career criminal under § 924(e), which required that Kerr have a combination of three convictions for violent felonies or serious drug offenses. The district court overruled the objection, relying on then-binding precedent that a North Carolina state conviction constitutes a crime punishable by a term of imprisonment exceeding one year “if any defendant charged with that crime could receive a sentence of more than one year,” United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005), overruled by United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc). As a result, the court sentenced Kerr under the ACCA to 268 months’ imprisonment. Kerr appealed, arguing that the district court erred in denying his motion to substitute counsel and in sentencing him under the ACCA. We placed the appeal in abeyance pending our decision on rehearing in Simmons. Our en banc opinion in Simmons overruled Harp and held that a North Carolina conviction is a crime punishable by a term of imprisonment exceeding one year only if the particular defendant is eligible for such a sentence, taking into account his criminal history and the nature of his offense. See 649 F.3d at 247 & n. 9. We subsequently affirmed the district court’s denial of Kerr’s motion to substitute counsel and vacated Kerr’s sentence because" }, { "docid": "23078266", "title": "", "text": "assess whether a prior conviction actually exposed a particular defendant to a sentence exceeding one year. See Carachuri-Rosendo v. Holder, — U.S.-, 130 S.Ct. 2577, 2586-87, 177 L.Ed.2d 68 (2010). Indeed, the Carachuri Court understood Rodriquez to “h[o]ld that a recidivist finding could set the maximum term of imprisonment, but only when the finding is a part of the record of conviction.” Carachuri, 130 S.Ct. at 2587 n. 12 (internal quotation marks omitted); see Rodriquez, 553 U.S. at 389, 128 S.Ct. 1783 (“[I]n those cases in which the records that may properly be consulted do not show that the defendant faced the possibility of a recidivist enhancement, it may well be that the Government will be precluded from establishing that a conviction was for a qualifying offense.”). And this Court acknowledged and obeyed the procedural constraint of Carachuri, as drawn from Rodriquez, in our en banc decision in Simmons. See Simmons, 649 F.3d at 249 (explaining that, “because no findings of recidivism or aggravation appear in Simmons’s state record of conviction, those enhancements may not be considered in determining whether Simmons’s offense constitutes a ‘felony drug offense’ under [21 U.S.C. § 841(b) ]”). Nonetheless, the cementing of Rodriquez ’s record-of-conviction requirement is far firom Carachuri’s “sole innovation.” See ante at 559. As discussed above, the more momentous change wrought by Carachuri is the abrogation of our Harp decision and the consequent narrowing of the pool of prior offenders subject to, inter alia, enhanced penalties pursuant to 21 U.S.C. § 841(b) and even criminal liability under 18 U.S.C. § 922(g)(1). See Simmons, 649 F.3d at 241, 246 (recognizing that “Harp no longer remains good law,” in that “Carachuri directly undermines the Harp rationale”). Carachuri is therefore easily distinguishable from the non-retroactive procedural rule invoked for comparison’s sake by the panel majority herein. See ante at 559 (citing United States v. Sanders, 247 F.3d 139, 147 (4th Cir.2001), for its holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), “constitutes a procedural rule because it dictates what fact-finding procedure must be employed”). As we explained" }, { "docid": "22613446", "title": "", "text": "State satisfied neither condition in this case. First, the State did not provide Simmons notice of intent to prove any aggravating factors; this foreclosed the sentencing judge from imposing an aggravated sentence. Second, because as a first-time offender Simmons possessed a “prior record level” of only 1, the Act established a minimum sentencing range of four-to-six months’ community punishment (no imprisonment) and capped his maximum sentence at eight months’ community punishment (again no imprisonment). Id. § 15A-1340.17(e)-(d); id. § 15A-1340.11(l)-(2). In compliance with these requirements, the state judge did not sentence Simmons to a single day of imprisonment, instead imposing only six-to-eight months’ community punishment. III. Nevertheless, the Government correctly notes that if United States v. Harp, 406 F.3d 242 (4th Cir.2005), controls here, Simmons cannot prevail in challenging his sentence. In Harp, we held that “to determine whether a conviction is for a crime punishable by a prison term exceeding one year” under North Carolina law, “we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” Id. at 246 (emphasis omitted). In our original 2009 unpublished opinion resolving Simmons’s appeal, we followed Harp and held that Simmons was convicted of an offense “punishable” by more than one year’s imprisonment. The Supreme Court has vacated that judgment and ordered us to reconsider the case in light of its subsequent precedent. After consideration of that precedent, we now conclude that Harp no longer remains good law. A. Last year, in Carachuri, the Supreme Court examined a provision of the Immigration and Nationality Act (INA) that allows an alien to seek cancellation of removal only if he “has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). The statute further defines the term “aggravated felony” as including a “drug trafficking crime,” id. § 1101(a)(43)(B), which another statute defines as including “any felony punishable under the Controlled Substances Act,” 18 U.S.C. § 924(c)(2). A final statutory provision limits a qualifying “felony” to “a crime for which the ‘maximum term of imprisonment authorized’ is ‘more than one year.’ ” Carachuri," }, { "docid": "4036869", "title": "", "text": "a crime punishable by a term of imprisonment exceeding one year “if any defendant charged with that crime could receive a sentence of more than one year,” United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005), overruled by United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc). As a result, the court sentenced Kerr under the ACCA to 268 months’ imprisonment. Kerr appealed, arguing that the district court erred in denying his motion to substitute counsel and in sentencing him under the ACCA. We placed the appeal in abeyance pending our decision on rehearing in Simmons. Our en banc opinion in Simmons overruled Harp and held that a North Carolina conviction is a crime punishable by a term of imprisonment exceeding one year only if the particular defendant is eligible for such a sentence, taking into account his criminal history and the nature of his offense. See 649 F.3d at 247 & n. 9. We subsequently affirmed the district court’s denial of Kerr’s motion to substitute counsel and vacated Kerr’s sentence because Harp was no longer good law. With respect to sentencing, we expressed no opinion regarding whether Kerr’s prior state convictions qualified as predicate felonies. On remand, Kerr’s counsel filed a motion asking the court to vacate Kerr’s conviction and dismiss the indictment. Prior to resentencing, the probation officer prepared a supplement to the original presen-tence investigation report, concluding that Kerr’s 2008 state breaking and entering convictions were each punishable by a presumptive maximum sentence of 14 months’ imprisonment and thus qualified as ACCA predicates. The district court denied counsel’s motion to vacate and dismiss. Agreeing that the prior breaking and entering convictions qualified as ACCA-pred-icate crimes, the court again sentenced Kerr to 268 months’ imprisonment. This appeal followed. II. A. We review de novo the question of whether a prior state conviction is a predicate felony for the purposes of federal criminal law. See United States v. Jones, 667 F.3d 477, 482 (4th Cir.2012). In order for a defendant to be sentenced as an armed career criminal on a felon-in-possession conviction, the defendant must have" }, { "docid": "22613477", "title": "", "text": "I have the greatest respect for the majority’s attempts to grapple with Carachuri, I remain unconvinced that that decision, based on an unrelated, civil statutory scheme, offers any clear direction here. In that sense, it is not unique. As Justice Scalia recently observed, the Supreme Court’s jurisprudence has hardly distilled ACCA’s murky waters. Derby v. United States, — U.S. -, 131 S.Ct. 2858, 2860, — L.Ed.2d-(2011) (Scalia, J., dissenting) (characterizing the Supreme Court’s ACCA decisions as “incomprehensible to judges”). In such circumstances, it is particularly compelling that we navigate those waters by the plain light of the statutory text. Here, that text does not ask whether the defendant had a “prior conviction” for which he could be punished by more than one year of imprisonment. To the contrary, it compels us to determine whether the defendant had a prior conviction for “an offense that is punishable” by more than one year of incarceration under 21 U.S.C. § 841(b)(1)(D). Under North Carolina law, Simmons’s Class I felony offense was so punishable. See N.C. Gen.Stat. §§ 15A-1340.17, 90-95(a). In my view, that ends our inquiry. AGEE, Circuit Judge, dissenting: The majority opinion correctly identifies the issue on appeal in this case: whether the analysis set forth in United States v. Harp, 406 F.3d 242 (4th Cir.2005), remains good law in light of the Supreme Court’s decisions in United States v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008), and Carachuri-Rosendo v. Holder,- U.S. -, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) (“Carachuri”). Cf. Maj. op. at 241. Because I do not find that either decision compels a result contrary to the plain language of the relevant statutes, I find no error in imposition of an enhanced sentence under 21 U.S.C. § 841(b)(1)(D) and would affirm the district court’s judgment that Simmons’ prior North Carolina state conviction constituted a “felony drug offense” as defined in 21 U.S.C. § 802(44). I. The proper starting point is the relevant statutory language. Jimenez v. Quarterman, 555 U.S. 113, 118, 129 S.Ct. 681, 685, 172 L.Ed.2d 475 (2009) (“As with any question of statutory" }, { "docid": "11888110", "title": "", "text": "during the time in which upward departures in Kansas were unconstitutional. Id. at 695. “Because the sentencing court could not have imposed a sentence greater than one year, Plakio’s state conviction was not a felony for the purposes of the federal sentencing guidelines.” Id. Central to the Plakio decision was the premise that the maximum sentence must be calculated by focusing on the particular defendant. Id. at 697. The dissent in Plakio relied on United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005), to argue that the analysis should not depend on an individual defendant’s criminal history, but rather on whether the crime for which he was convicted carries with it a possible sentence in excess of a year. Plakio, 433 F.3d at 697-98 (O’Brien, J., dissenting) (agreeing with the Fourth Circuit’s conclusion that in determining “ ‘whether a conviction is a crime punishable by a prison term exceeding one year ... we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.’ ” (quoting Harp, 406 F.3d at 246)). The majority rejected that approach, instead favoring one that took into account the individual defendant’s criminal history category under the Kansas sentencing guidelines. Id. at 697. This court explained that Arnold suggested the focus is on the individual defendant, that an integral part of the Kansas sentencing scheme is the application of a particular defendant’s criminal history to determine the presumptive sentence, and that Kansas ties the maximum punishment to the characteristics of the particular defendant. Id. B. United States v. Rodriquez For purposes of determining the applicability of § 922(g), the focus in Arnold, Norris, and Plakio was on the maximum sentence to which the individual defendant was exposed. In a closely analogous context of the Armed Career Criminal Act (“ACCA”), however, the Supreme Court recently rejected this approach. Rodriquez, 128 S.Ct. at 1792. In Rodriquez, the Supreme Court examined whether a prior state conviction carried a “maximum term of imprisonment of ten years or more” based on a recidivism enhancement. Id. at 1787. The ACCA provides" }, { "docid": "22703447", "title": "", "text": "unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (second alteration in original). For Harp to be designated a career offender, the Government must establish (1) that Harp was at least 18 at the time of the instant offense, (2) that the instant offense is a felony that is either a “crime of violence” or a “controlled substance offense,” and (3) that Harp had at least two prior felony convictions for either a “crime of violence” or a “controlled substance offense.” U.S.S.G. § 4B1.1(a). Harp concedes that the Government established the first two requirements, but he argues that one of his prior convictions considered by the district court — a July 16, 2001 North Carolina conviction for possession with the intent to distribute marijuana — was not a “controlled substance offense” because it was not “punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 4B1.2(b). To determine whether a conviction is for a crime punishable by a term of imprisonment exceeding one year, we consider the law in effect at the time of the conviction. See United States v. Johnson, 114 F.3d 435, 445 (4th Cir.1997); see also United States v. Norris, 319 F.3d 1278, 1281-83 (10th Cir.2003) (holding, in the context of determining the sufficiency of an indictment charging possession of a firearm by a felon, that a Kansas conviction was punishable by a term of more than one year because the Kansas sentencing scheme allowed upward departure to a sentence greater than one year for the prior offense; finding it was immaterial that, after the defendant was convicted of the prior offense, the Kansas Supreme Court held that the Kansas scheme for permitting upward departures was uncon stitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Harp maintains that because the specific facts of his case did not provide any basis for imposition of a sentence exceeding one year, his prior conviction was not for an" }, { "docid": "2778708", "title": "", "text": "n. 1 (emphasis added). C. Precedent In 2005 we decided United States v. Plakio, 433 F.3d 692 (10th Cir.2005), which required us to determine whether a defendant’s prior Kansas drug conviction qualified under U.S.S.G. § 2K2.1(a)(4)(A) as a “felony”; that is, whether the offense was “punishable by ... imprisonment for a term exceeding one year.” Plakio, 433 F.3d at 693-94 (quoting U.S.S.G. § 2K2.1 cmt. app. n. 1). Under Kansas’s sentencing scheme, the defendant could have received eleven months in prison at most. Id. at 695. Reversing the district court, we held this conviction was not a felony “[because the [state] sentencing court could not have imposed a sentence greater than one year.” Id. “Central to the Plakio decision was the premise that the maximum sentence must be calculated by focusing on the particular defendant,” taking his criminal history category (under Kansas law) into account. Hill, 539 F.3d at 1217 (citing Plakio, 433 F.3d at 697). Three years later, the Supreme Court issued United States v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008). Soon after, we decided Hill, 539 F.3d 1213. Much like Plakio, Hill required us to determine whether a defendant’s prior Kansas firearm conviction qualified as a “crime punishable by imprisonment for a term exceeding one year” — this time under 18 U.S.C. § 922(g)(1). Hill, 539 F.3d at 1214. Also like Plakio, under Kansas’s sentencing scheme the defendant could have received no more than eleven months in prison. Id. Initially, under our Plakio approach, we held the defendant was not convicted of a “crime punishable by imprisonment for a term exceeding one year.” Id. at 1213-14, 1218. After Rodriquez was released, however, we granted panel rehearing and vacated our prior opinion. Id. Rodriquez, we held, “explicitly rejected the proposition that mandatory guidelines systems that cap sentences [like Kansas’s system] can decrease the maximum term of imprisonment.” Id. at 1218 (quoting Rodriquez, 553 U.S. at 390, 128 S.Ct. 1783) (internal quotation marks omitted). Relying on Rodriquez, we overturned Plakio and held the proper focus in regard to the language in question is on the" }, { "docid": "10123981", "title": "", "text": "defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a) (2005) (emphasis supplied). A “controlled substance offense” is defined as “a[ ] [drug] offense under federal or state law, punishable by imprisonment for a term exceeding one year.” Id. § 4B1.2(b). Appellant’s presentence investigation report (“PSR”) listed, inter aha, two North Carolina convictions for possession with intent to sell cocaine. For the first conviction, which occurred in 1995, Appellant was sentenced to 10-12 months in prison (the “1995 conviction”); for the second, which occurred in 2002, he was sentenced to 13-16 months in prison (the “2002 conviction”). At the time of Appellant’s federal sentencing, this court “determine[d] whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law,] [by] considering] the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005) (second emphasis supplied). Appellant’s 1995 conviction was for a Class H felony, see N.C. Gen.Stat. § 90-95(a)(1), (b)(1) (2005), which carried a maximum aggravated sentence of well over 12 months' in prison, id. § 15A-l340.17(c). Therefore, under Harp, Appellant was convicted of a crime punishable by a “prison term exceeding one year,” even though his actual sentence did not exceed one year. Based on the 1995 and 2002 convictions, the PSR recommended that Appellant be designated a career offender, and the district court agreed. As a result, Appellant’s offense level rose from 32 to 37 (with a subsequent three-level reduction for acceptance of responsibility), and his advisory Guideline range jumped from 151-188 to 262-327 months in prison. See U.S.S.G. § 4B1.1(b)(1). The district court sentenced Appellant at the bottom of the Guidelines range. Appellant, questioning the propriety of his career offender status, appealed from this judgment. Relying on Harp, we affirmed. See United States v. Foote, 249 Fed.Appx. 967, 969 (4th Cir.2007). However, the Supreme Court vacated and remanded for consideration in light of Kimbrough v. United States, 552 U.S." } ]

[ { "docid": "9539005", "title": "", "text": "Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, deprives the District Court of jurisdiction to enjoin the picketing at the Terminal. 29 U.S.C. § 107 provides that District Courts are without jurisdiction to grant injunctive relief in cases “involving or growing out of a labor dispute” unless a hearing is conducted and specific findings are made that unlawful acts are being committed or threatened, and substantial and irreparable injury will occur if injunctive relief is not granted. Terminal contends that the picketing constitutes an unlawful secondary boycott and thus falls within the exception to the general provisions of the Norris-LaGuardia Act. In Brotherhood of R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969), the Supreme Court was confronted with a factual situation similar to the one in this case. The Court noted the difficulty in distinguishing between “legitimate ‘primary activity’ and banned ‘secondary activity’ ” particularly in “common situs” cases. Similar difficulty was noted by the court in Brotherhood of R. Train. v. Atlantic Coast Line R. Co., 362 F.2d 649 (5th Cir.), aff’d, 385 U.S. 20, 87 S.Ct. 226, 17 L.Ed.2d 20 (1966). In that case, the court looked at the economic reality of the situation and determined that the secondary employer railroad terminal had substantially aligned itself with the primary employer. The court emphasized the services and facilities provided to the primary employer by the secondary employer. In addition, the court noted that the non-struck railroads using the terminal were in competition with the struck lines. The nonstriking employees and their employers thus had a significant interest in the outcome of the primary strike. On the record before us, we cannot apply the Fifth Circuit’s “economic self-interest” test, or any other means of determining the legality of the picketing activity. Whether given labor activity is protected by federal law is largely a factual inquiry. Brotherhood of R. Train, v. Atlantic Coast Line R. Co., supra at 654. In the instant case, the District Court made no findings of fact concerning the economic relationship of the parties. Without a record and without such findings," } ]

[ { "docid": "3004838", "title": "", "text": "& Southern Railway v. Brotherhood of Railway Clerks, 84 Lab.Cas. (CCH) 110,835 at 19,256-57 (D.D.C.), aff’d, (D.C. Cir. Sept. 15, 1978), cert. denied, 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 670 (1978) (labor dispute involved; picketing and sympathy strike not enjoinable because non- struck railroad has common interest with struck railroad by virtue of railroads’ participation in strike insurance plan); Illinois Central Railroad v. International Brotherhood of Teamsters Local 568, 90 F.Supp. 640, 643-45 (W.D.La.1950) (labor dispute not involved; picketing of non-struck railroad enjoinable where railroad’s sole connection with union-gravel company .dispute is railroad’s service performed for company at point “substantially removed from” company’s plant); Pacific Gamble Robinson Co. v. Minneapolis & St. Louis Railway, 85 F.Supp. 65, 66 (D.Minn.1949) (“[t]he purpose of the statute is to affect labor matters, not merely an interest in an industry, regardless of its relation to labor matters. Moreover, both parties must possess the required interest. Otherwise no relationship to a labor dispute would exist between the two.”); Gomez v. United Office & Professional Workers Local 16, 73 F.Supp. 679, 681-82 (D.D.C.1947) (labor dispute not involved; picketing of plaintiff dance studio enjoinable where plaintiff has “no financial interest in and does not exercise control over” struck dance studio and where union has no interest in representing plaintiff’s employees); Donnelly Garment Co. v. ILG-WU, 20 F.Supp. 767, 770-72 (W.D.Mo.1937) (nonsensical result of reading section 13(a) literally means that it must be read in conjunction with section 13(c)’s definition of “labor dispute”). See In re Brotherhood of Railway Clerks, 605 F.2d 1073, 1075 (8th Cir. 1979) (absent findings of economic relationship between picketed non-struck railroad terminal and struck railroad, there was no basis for determining whether district court was entitled to grant relief for the terminal under the Norris-LaGuardia Act). See also Columbia River Packers Association, Inc. v. Hinton, 315 U.S. 143, 146-47, 62 S.Ct. 520, 522, 86 L.Ed. 750 (1942) (suit by fish processor against independent fishermen’s association not a case involving a labor dispute because case did not involve a controversy upon which the employer-employee relationship had a bearing). Under this “economic self-interest" }, { "docid": "21489663", "title": "", "text": "any labor dispute of any nature between appellees and the striking-picketing employees of FEC or their unions, or between the appellees and their employees. The plain meaning of the statute does not give an anti-injunc-tive shield to one group of railroad employees, who are engaged in an unresolved labor controversy with their employer over terms and conditions of employment, when they unilaterally carry that controversy over to non-involved rail facilities. The last phrase in the definition of labor dispute in section 13(c), “regardless of whether or not the disputants stand in the proximate relation of employer or employee,” was inserted into the Norris-LaGuardia Act as a direct result of the holding in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 (1921), which construed the Clayton Act to withhold protection from labor unions that had no contractual relationship with the employer in question, and which, by their nature, could not be employees. A primary purpose of Congress in passing the Norris-LaGuardia Act was to broaden the definition of “dispute” so that the labor organization could act for employees by picketing an employer without being subject to injunction. 75 Cong.Rec. 4916 (1932) (remarks of Senator Wagner); Donnelly Garment Co. v. International Ladies’ Garment Workers’ Union, 20 F.Supp. 767, 771 (W.D.Mo.1937). See also 75 Cong.Rec. 5489 (1932) (remarks of Congressman Celler concerning Dail-Overland Co. v. Willys-Overland, Inc., 263 F. 171, 192 [N.D.Ohio 1920] [wherein strikers were held to be no longer “employees” under the Clayton Act]). It is clear that “ * * * the statutory classification, however broad, of parties and circumstances to which a ‘labor dispute’ may relate does not expand the application of the Act to include controversies upon which the employer-employee relationship has no bearing.” Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 146, 62 S.Ct. 520, 522, 86 L.Ed. 750 (1942). Subsection (a) of section 13 (29 U.S.C. § 113 [a]) defines the relationships of “persons” who may be parties to a “case” which arises out of a “labor dispute.” To take section 13(a) alone as a definition of “case" }, { "docid": "3004839", "title": "", "text": "F.Supp. 679, 681-82 (D.D.C.1947) (labor dispute not involved; picketing of plaintiff dance studio enjoinable where plaintiff has “no financial interest in and does not exercise control over” struck dance studio and where union has no interest in representing plaintiff’s employees); Donnelly Garment Co. v. ILG-WU, 20 F.Supp. 767, 770-72 (W.D.Mo.1937) (nonsensical result of reading section 13(a) literally means that it must be read in conjunction with section 13(c)’s definition of “labor dispute”). See In re Brotherhood of Railway Clerks, 605 F.2d 1073, 1075 (8th Cir. 1979) (absent findings of economic relationship between picketed non-struck railroad terminal and struck railroad, there was no basis for determining whether district court was entitled to grant relief for the terminal under the Norris-LaGuardia Act). See also Columbia River Packers Association, Inc. v. Hinton, 315 U.S. 143, 146-47, 62 S.Ct. 520, 522, 86 L.Ed. 750 (1942) (suit by fish processor against independent fishermen’s association not a case involving a labor dispute because case did not involve a controversy upon which the employer-employee relationship had a bearing). Under this “economic self-interest test,” the subject matter of the present case — the picketing of AD&N — would involve or arise out of the UTU-Rock Island labor dispute if AD&N were “substantially aligned” with Rock Island. See, e. g., Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad Co., supra. In Atlantic Coast Line the employer seeking injunctive relief against the picketing was a railroad terminal which was substantially aligned with the struck employer, a railroad, in the sense that the railroad had a one-quarter ownership interest in the terminal and received services from the terminal that “in fact constitute))!] an integral part of [the struck railroad’s] day-to-day operations.” 362 F.2d at 651. A different situation prevailed here. There was substantial evidence for the district court to find that the secondary employer here — AD&N—did not provide the primary employer — Rock Island — with essential services or facilities. AD&N personnel did little more than help F&P exercise its contractual right to interchange Fordyce yard cars in order to continue rail service for its own customer, the Georgia-Pacific" }, { "docid": "14206660", "title": "", "text": "requires that the case involve ‘any’ labor dispute.”). Critical to whether a dispute is a “labor dispute” is whether “the employer-employee relationship [is] the matrix of the controversy.” Columbia River Packers Ass’n, Inc. v. Hinton, 315 U.S. 143, 147, 62 S.Ct. 520, 522, 86 L.Ed. 750 (1942). In the Norris-LaGuardia Act, congress defined “labor dispute” in terms that “no longer leave room for doubt.” United States v. Hutcheson, 312 U.S. at 234, 61 S.Ct. at 467. Section 13 of Norris-LaGuardia was obviously written with bipolar (i.e., employee-employer, employer-employer, and employee-employee) disputes in mind. See 29 U.S.C. § 113(a)(l)-(3). What we are presented with, however, is fairly characterized not as a bipolar, but as a triangular dispute, with a group of emplqyees (Local 1814), a group of employers (NYSA), and the government at the respective corners of the triangle. While the government urges that, in order to determine the nature of the dispute at issue, we should look only at one leg of the triangle, the one representing the RICO-born “dispute” between NYSA and the government, we cannot ignore the fact that this case focuses also upon another leg of that triangle, i.e., the one representing the contractual dispute between Local 1814 and NYSA. As we have noted above, Local 1814’s complaint alleges an anticipatory breach of the collective bargaining agreement between Local 1814 and NYSA; this is surely a “controversy concerning terms and conditions of employment,” 29 U.S.C. § 113(c), in which “the employer-employee relationship is the matrix” of the dispute. See Jacksonville Bulk Terminals, 457 U.S. at 713, 102 S.Ct. at 2680; Columbia River Packers, 315 U.S. at 147, 62 S.Ct. at 522. The government’s intervention does not, by itself, alter the essential character of this dispute, which is between an employers’ group and an employees’ group, see 29 U.S.C. § 113(a)(1) (“between one or more employers or associations of employers and one or more employees or associations of employees”), over the proper interpretation of their collective bargaining agreement. Our reading hews close to recent Supreme Court decisions that command strict adherence to the literal definition of “labor dispute”." }, { "docid": "1616021", "title": "", "text": "and conditions of employment, or the representation of the employees in negotiating or fixing the terms and conditions of employment. In addition, the claims do not arise out of a labor dispute because the Mansfield Defendants do not engage in the same trade or industry as the Plaintiff, and are not interested parties in the negotiations of the CBA. Rather, the Plaintiff alleges that the Mansfield Defendants deprived it of its statutory and constitutional property rights to operate its plant. These claims are wholly independent of the labor dispute between the Plaintiff and Union Defendants. The Unions, in turn, argue that the in-junctive provisions of the consent decree relate to the labor dispute at Armco’s Mansfield plant. Specifically, the Unions argue that the provisions pertaining to the no-walk zones, mandated searches of picket shanties, and removal of structures on public property are directly related to the labor dispute. Therefore, the Unions say, the Act applies to the consent decree. The Act defines a labor dispute as “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.” 29 U.S.C. § 113(c) . The Supreme Court has interpreted the scope of the Act as intentionally broad, such that a case “involves a labor dispute” if “the employer-employee relationship [is] the matrix of the controversy.” Columbia River Packers Association v. Hinton, 315 U.S. 143, 147, 62 S.Ct. 520, 86 L.Ed. 750 (1942); see also Jackson ville Bulk Terminals, Inc. v. International Longshoremen’s Association, 457 U.S. 702, 712-13, 102 S.Ct. 2672, 73 L.Ed.2d 327 (1982). The consent decree in this case clearly involves or grows out of a labor dispute. The language of the consent decree itself indicates that it pertains directly to the labor dispute at the Armco Mansfield plant: In addition to its continuing jurisdiction to enforce the other provisions of this Consent Decree, this Court shall make and enforce such other orders respecting conduct by private" }, { "docid": "10436462", "title": "", "text": "That this is a labor dispute‘within the statutory definition follows from the precedents. If a dispute as to the conditions of work between a union and employers still remains a labor dispute as to third persons interested therein or injured thereby, its complexion is hardly changed by a settlement — possibly only an armistice, not a treaty — between tbe original parties which hurts the third persons more than did the original controversy. United States v. International Hod Carriers’, etc., Council, supra; Milk Wagon Drivers’ Union v. Lake Valley Farm Products, Inc., supra, 311 U.S. at page 99, 61 S.Ct. at page 126, 85 L.Ed. 63. The decision in Columbia River Packers’ Ass’n v. Hinton, 315 U.S. 143, 147, 62 S.Ct. 520, 522, 86 L.Ed. 750, strongly relied on by the plaintiffs and the court below, is not to the contrary; for there the controversy was between a processor of fish on the one hand, and independent fishermen and their association, on the other. The Court emphasized that the defendants’ desire was “to continue to operate as independent businessmen”; the dispute related “solely to the sale of fish,” and hence was unlike those- involved in earlier cases, where the employer-employee relationship was “the matrix of the controversy.” The fact that some of the fishermen had a small number of employees who were also members of their association did not alter the essential nature of the controversy. So in American Medical Ass’n v. United States, 317 U.S. 519, 533-536, 63 S.Ct. 326, 87 L.Ed. 434, the professional association was interested solely in preventing the operation of a business conducted in corporate form by Group Health Association, Inc., not in the terms and conditions upon which the latter employed its physicians. Here, however, the defendant union is admittedly a bona fide labor organization; and the “conditions” of the employment of its members by the local manufacturers and contractors are “the matrix of the controversy,” indeed the very thing which causes the plaintiffs their injuries. It seems clear, therefore, that the union members may refuse to work upon the plaintiffs’ products; and, in" }, { "docid": "21554039", "title": "", "text": "457 U.S. 702, 712-14, 102 S.Ct. 2672, 2680-81, 73 L.Ed.2d 327 (1982) (quoting Columbia River Packers Ass’n, Inc. v. Hinton, 315 U.S. 143, 147, 62 S.Ct. 520, 522, 86 L.Ed. 750 (1942)) (a union’s work stoppage, although motivated exclusively by geopolitical concerns, is a labor dispute because “the employer-employee relationship [is] the matrix of the controversy”); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 559-61, 58 S.Ct. 703, 707, 82 L.Ed. 1012 (1938) (finding that picketers who were neither employees nor union organizers, and who were asserting political and social interests rather than economic interests commonly associated with labor unions, were persons interested in a labor dispute within the meaning of section 13). The language of the Act, and the cases interpreting it, leave us with absolutely no doubt that Camping and the unions are engaged in a labor dispute within the literal terms of the Act. Nor can it be argued that the type of injunctive relief granted below is not covered by the literal provisions of the Act. Although we have never addressed this precise question before, we have clearly held that an order staying arbitration is a “classic form of injunction,” not “a mere step in the controlling of litigation before the court.” A. & E. Plastik Pak Co., Inc. v. Monsanto Co., 396 F.2d 710, 713 (9th Cir.1968) (order denying stay of nonlabor arbitration is an order denying a temporary injunction, and may therefore be the subject of an interlocutory appeal under 28 U.S.C. § 1292(a)(1)). Although A. & E. Plastik Pak was not a labor case, we can think of no reason why an order staying a labor case is any less an injunction. Accord In re District No. 1—Pacific Coast Dist., Marine Eng’rs’ Beneficial Ass’n, 723 F.2d 70 (D.C.Cir.1983); Jou-Jou Designs, Inc. v. International Ladies Garment Workers Union, 643 F.2d 905 (2d Cir.1981). Thus we have before us a preliminary injunction issued by a federal court in a labor dispute, and there can be little doubt that under a literal reading of Norris-LaGuardia, the Act applies to the district court’s stay of" }, { "docid": "3004843", "title": "", "text": "section 13(a) would operate to deprive the federal courts of injunctive jurisdiction. The obvious lesson is that one cannot make sense of section 13(a) simply by focusing on the character of the parties; one must also consider the subject matter of the dispute. The Supreme Court has recognized as much in declining to follow a strict, technical construction of section 13(a) in cases that did not in fact involve a section 13(c) labor dispute, even though the cases plainly did involve adversaries with interests in the same industry. E. g., American Medical Association v. United States, 317 U.S. 519, 534-36, 63 S.Ct. 326, 331-332, 87 L.Ed. 434 (1943); Columbia River Packers Association, Inc. v. Hinton, supra, 315 U.S. at 146-47, 62 S.Ct. at 522. The background of the Norris-LaGuardia Act indicates its intended scope. The House report advocating passage of the Norris-LaGuardia anti-injunction provisions explains that their purpose was “to protect the rights of labor in the same manner the Congress intended when it enacted the Clayton Act * * H.R.Rep.No.669, 72d Cong. 1st Sess. 3 (1932). Section 20 of the Clayton Act provides that “in any case between an employer and employees * * involving, or growing out of, a dispute concerning terms or conditions or employment,” a federal court may not enjoin persons from “ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do.” 29 U.S.C. § 52. In a series of cases, and particularly in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 (1921), the Supreme Court interpreted section 20 to encompass only those cases in which the adversaries had an employer-employee relationship. This interpretation ignored a union’s interest in protecting its wage levels by seeking to represent all employees in the same industry in order to eliminate the competitive edge of non-union employers over union employers. Justice Brandéis dissented from the Court’s narrow interpretation of section 20 because he believed the section “declare[s] the right of industrial combatants to push their struggle to the limits of the justification of" }, { "docid": "19905833", "title": "", "text": "fair representation by allocating a disproportionate amount of work previously done by machine repairmen work to be performed thereafter by electricians and millwrights. Discussion I. Jurisdiction As an initial matter, defendants argue this court lacks jurisdiction to issue a preliminary injunction under the Norris-La-Guardia Act, 29 U.S.C. § 101, et seq. Section 101 provides: No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this chapter. 29 U.S.C. § 101. Plaintiffs contend § 101’s jurisdictional bar is inapplicable to this dispute because the parties’ disagreement does not stem from a labor dispute. The Act defines a labor disputes as: The term “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee. 29 U.S.C. § 113(c). The Supreme Court has held that “the critical element in determining whether the provisions of the Norris-La-Guardia Act apply is whether ‘the employer-employee relationship [is] the matrix of the controversy.’ ” Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n, 457 U.S. 702, 712, 102 S.Ct. 2672, 73 L.Ed.2d 327 (1982) (quoting Columbia River Packers Ass’n., Inc. v. Hinton, 315 U.S. 143, 147, 62 S.Ct. 520, 86 L.Ed. 750 (1942)). “The test is satisfied where an employer and a union representing its employees are the disputants, and their dispute concerns the interpretation of the collective bargaining agreement that defines their relationship.” Int’l Union United Auto., Aerospace and Agric. Implement Workers of Am. v. Lester Eng’g Co., 718 F.2d 818, 823 (6th Cir.1983). The matrix of the dispute at issue here does not involve the employer-employee relationship, but rather relationships between employees" }, { "docid": "3004833", "title": "", "text": "secondary picketing in such a case is either absolutely barred, see 29 U.S.C. § 104(a), (e) & (i), or is available only under special circumstances which were not shown here, see 29 U.S.C. §§ 107,108. Applicability of the Act’s anti-injunction proscription therefore depends solely on whether this was a case involving or arising out of a labor dispute within the meaning of the Act. Section 13(c) of the Act, 29 U.S.C. § 113(c), defines “labor dispute” as “any controversy” concerning either “terms or conditions of employment” or “representation” of persons in negotiating “terms or conditions of employment.” A “ltjbor dispute” exists under section 13(c) “regardless of whether or not the disputants stand in the proximate relation of employer and employee.” The “labor dispute” in this case was that which existed between UTU and Rock Island. We reject UTU’s contention that another “labor dispute” existed between it and AD&N. UTU’s only asserted dispute with AD&N was over the latter’s use of managerial personnel to move F&P freight over Rock Island track in Fordyce. This controversy concerned neither the representation of AD&N employees nor their terms or conditions of employment. Cf. Milk Wagon Drivers’ Union, Local 753 v. Lake Valley Farm Products, Inc., 311 U.S. 91, 96-97, 61 S.Ct. 122, 124-25, 85 L.Ed. 63 (1940) (“labor dispute” exists between non-struck employer and picketing union where picketing is aimed at compelling employer’s employees to join union for purpose of improving their pay and working conditions). Application of the Norris-LaGuardia Act thus depends on whether this case “involves or arises out of” the only possibly relevant labor dispute — that between UTU and Rock Island. Section 13(a) of the Act provides: (a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or" }, { "docid": "5278025", "title": "", "text": "involves one or more injunctions as that term is used throughout the NLA. See id. §§ 101-115. Third, if we answer the first two questions affirmatively, we must then determine whether the district court complied with the procedural requirements of the NLA. See id. §§ 107-109. Fourth, if the district court did not comply with the NLA’s procedural requirements, we must determine whether the dispute falls within a judicially-carved exception to the NLA. 1. Does This Case Involve a “Labor Dispute” The NLA, by its terms, applies to any “labor dispute.” Id. §§ 101, 107, 109. The NLA defines a “labor dispute” as in-chiding: any controversy concerning terms or conditions of employment, or concerning the association or representation of persons negotiating, -fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee. Id. § 113(c). The Supreme Court has stated that a case involves a labor dispute if “the employer-employee relationship [is] the matrix of the controversy.” Columbia River Packers Ass’n, Inc. v. Hinton, 315 U.S. 143, 147, 62 S.Ct. 520, 522, 86 L.Ed. 750. (1942); United Tel. Workers, AFL-CIO v. Western Union Corp., 771 F.2d 699, 704 (3d Cir.1985) (quoting Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 712-13, 102 S.Ct. 2672, 2680, 73 L.Ed.2d 327 (1982) (quoting Columbia River)). This interpretation of the term “labor dispute” furthers the “intentionally broad” scope of the NLA. United Telegraph, 771 F.2d at 704. We then ask whether an action by an employer to enjoin a union from proceeding to arbitration involves a labor dispute. The Court of Appeals for the District of Columbia, in considering the precise question now before this Court, stated: “There is no doubt whatever that the instant action [to enjoin arbitration] involves or grows out of a ‘labor dispute’_' [A]n injunction to block an arbitration under a collective bargaining agreement is fully subject to the strictures of the Norris-LaGuardia Act.” In re District No. 1—PACIFIC Coast Dist., Marine Eng’rs’ Beneficial Ass’n, 723 F.2d 70, 74 n. 2" }, { "docid": "21722610", "title": "", "text": "injunctive relief in labor strikes, see Section 4, 29 U.S.C. § 104 (1982), the Section 7 provisions clearly advance current labor policies when applied to any labor dispute. This Court has therefore applied the Section 7 requirements in cases concerning contractual disputes brought under the subsequently enacted § 301(a) of the Labor Management Relations Act of 1947. United States Steel Corp. v. United Mine Workers, 456 F.2d 483, 487 (3d Cir.), cert, denied, 408 U.S. 923, 92 S.Ct. 2492, 33 L.Ed.2d 334 (1972). Further, to serve the broad congressional purpose the strict requirements of the Norris-LaGuardia Act apply to controversies such as the present one where labor organizations seek injunctions against employers, as well as to cases where the parties stand on an opposite footing. See United Steelworkers of Am. v. Fort Pitt Steel Casting, 598 F.2d 1273, 1278 (3d Cir.1979). The key limitation to the application of the Norris-LaGuardia Act is that a case covered by its provisions must be one “involving or growing out of a labor dispute. ...” § 1, 29 U.S.C. § 101 (1982). Section 13(c) of the Act provides: The term “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment____ 29 U.S.C. § 113(c) (1982). As the present matter concerns negotiations “seeking to arrange terms or conditions of employment,” it falls within the coverage of the Act. The Act’s scope is intentionally broad, covering any case, including this matter, in which “the employer-employee relationship [is] the matrix of the controversy.” Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 712-13, 102 S.Ct. 2672, 2680, 73 L.Ed.2d 327 (1982) (quoting Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 147, 62 S.Ct. 520, 522, 86 L.Ed. 750 (1942)). In this proceeding, the district court judge issued a preliminary injunction without holding the evidentiary hearing required by the Act. We also note, although the parties failed to address this point, that the court did not file findings of fact prior to" }, { "docid": "3004834", "title": "", "text": "neither the representation of AD&N employees nor their terms or conditions of employment. Cf. Milk Wagon Drivers’ Union, Local 753 v. Lake Valley Farm Products, Inc., 311 U.S. 91, 96-97, 61 S.Ct. 122, 124-25, 85 L.Ed. 63 (1940) (“labor dispute” exists between non-struck employer and picketing union where picketing is aimed at compelling employer’s employees to join union for purpose of improving their pay and working conditions). Application of the Norris-LaGuardia Act thus depends on whether this case “involves or arises out of” the only possibly relevant labor dispute — that between UTU and Rock Island. Section 13(a) of the Act provides: (a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a “labor dispute” (as defined in this section) of “persons participating or interested” therein (as defined in this section). 29 U.S.C. § 113(a). UTU contends we should read this expansive language literally and rule that the present case is a case involving or growing out of a labor dispute on the basis that UTU and AD&N “are engaged in the same industry * * * or have a direct or indirect interests therein.” Most courts considering the scope of section 13(a), however, have not relied on a literal reading. Instead, these courts have come to results in accord with the following test: when a non-struck employer seeks to have a union’s activities enjoined" }, { "docid": "21554038", "title": "", "text": "arbitration in this matter pending appeal.” Thus, the district court’s exercise of its injunctive powers without regard for the provisions of the Norris-LaGuardia Act presents a very live controversy in the most traditional sense. A We take as our starting point the language of the Norris-LaGuardia Act itself, which presents a formidable obstacle to Camping’s claim that the district court was not required to comply with that statute. The Act by its terms applies to any “case involving or growing out of a labor dispute,” 29 U.S.C. §§ 101, 107, 109; cf. §§ 104, 108. Section 13 defines the phrase “labor dispute” to “include[] any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.” 29 U.S.C. § 113(c). This definition is extraordinarily broad, and the Supreme Court has so interpreted it. Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 712-14, 102 S.Ct. 2672, 2680-81, 73 L.Ed.2d 327 (1982) (quoting Columbia River Packers Ass’n, Inc. v. Hinton, 315 U.S. 143, 147, 62 S.Ct. 520, 522, 86 L.Ed. 750 (1942)) (a union’s work stoppage, although motivated exclusively by geopolitical concerns, is a labor dispute because “the employer-employee relationship [is] the matrix of the controversy”); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 559-61, 58 S.Ct. 703, 707, 82 L.Ed. 1012 (1938) (finding that picketers who were neither employees nor union organizers, and who were asserting political and social interests rather than economic interests commonly associated with labor unions, were persons interested in a labor dispute within the meaning of section 13). The language of the Act, and the cases interpreting it, leave us with absolutely no doubt that Camping and the unions are engaged in a labor dispute within the literal terms of the Act. Nor can it be argued that the type of injunctive relief granted below is not covered by the literal provisions of the Act. Although we have" }, { "docid": "3004841", "title": "", "text": "mill at Fordyce. Any Rock Island cars moved by AD&N personnel were moved for F&P’s benefit, not Rock Island’s. UTU has failed to show that AD&N performed essential services for Rock Island, that AD&N aided Rock Island through a strike insurance plan, or that AD&N and Rock Island otherwise had any significant commonality of interest. In short, the evidence before the district court was that AD&N was not Rock Island’s ally in the struggle between UTU and Rock Island. Because UTU has failed to establish a substantial connection between its labor dispute and its picketing of the premises of AD&N, the “economic self-interest test” mandates the conclusion that the picketing did not grow out of the labor dispute and therefore was not protected by the Norris-LaGuardia Act. See generally In re Brotherhood of Railway Clerks, supra, 605 F.2d at 1075. UTU would have us avoid this result by rejecting the economic self-interest test in favor of a literal application of section 13(a). UTU argues the narrower scope circumscribed by the self-interest test is invalid in light of the express language and historical purpose of the Norris-LaGuardia Act. We disagree. Although the plain language of a statute is often controlling, it is impermissible to follow a literal reading that engenders absurd consequences where there is an alternative interpretation that reasonably effects the statute’s purpose. United States v. Ryan, 284 U.S. 167, 175, 52 S.Ct. 65, 68, 76 L.Ed. 224 (1931). Absurd consequences and a reasonable alternative are present here. Read as a verbal formula, without regard to its background and to the rest of the Norris-LaGuardia Act, section 13(a) would operate to bar injunctive relief in any case involving persons with direct or indirect interests in the same industry, trade, craft, or occupation, regardless of whether any of these persons has an interest in a labor dispute. Consider, for example, a diversity case in which plaintiff seeks specific performance of a contract to sell real property. If both plaintiff and defendant belong to the same industry, trade, craft, or occupation, or have direct or indirect interests therein, a literal construction of" }, { "docid": "3004840", "title": "", "text": "test,” the subject matter of the present case — the picketing of AD&N — would involve or arise out of the UTU-Rock Island labor dispute if AD&N were “substantially aligned” with Rock Island. See, e. g., Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad Co., supra. In Atlantic Coast Line the employer seeking injunctive relief against the picketing was a railroad terminal which was substantially aligned with the struck employer, a railroad, in the sense that the railroad had a one-quarter ownership interest in the terminal and received services from the terminal that “in fact constitute))!] an integral part of [the struck railroad’s] day-to-day operations.” 362 F.2d at 651. A different situation prevailed here. There was substantial evidence for the district court to find that the secondary employer here — AD&N—did not provide the primary employer — Rock Island — with essential services or facilities. AD&N personnel did little more than help F&P exercise its contractual right to interchange Fordyce yard cars in order to continue rail service for its own customer, the Georgia-Pacific mill at Fordyce. Any Rock Island cars moved by AD&N personnel were moved for F&P’s benefit, not Rock Island’s. UTU has failed to show that AD&N performed essential services for Rock Island, that AD&N aided Rock Island through a strike insurance plan, or that AD&N and Rock Island otherwise had any significant commonality of interest. In short, the evidence before the district court was that AD&N was not Rock Island’s ally in the struggle between UTU and Rock Island. Because UTU has failed to establish a substantial connection between its labor dispute and its picketing of the premises of AD&N, the “economic self-interest test” mandates the conclusion that the picketing did not grow out of the labor dispute and therefore was not protected by the Norris-LaGuardia Act. See generally In re Brotherhood of Railway Clerks, supra, 605 F.2d at 1075. UTU would have us avoid this result by rejecting the economic self-interest test in favor of a literal application of section 13(a). UTU argues the narrower scope circumscribed by the self-interest test is invalid in" }, { "docid": "3004835", "title": "", "text": "associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a “labor dispute” (as defined in this section) of “persons participating or interested” therein (as defined in this section). 29 U.S.C. § 113(a). UTU contends we should read this expansive language literally and rule that the present case is a case involving or growing out of a labor dispute on the basis that UTU and AD&N “are engaged in the same industry * * * or have a direct or indirect interests therein.” Most courts considering the scope of section 13(a), however, have not relied on a literal reading. Instead, these courts have come to results in accord with the following test: when a non-struck employer seeks to have a union’s activities enjoined by a federal court the case involves or grows out of a labor dispute — and thus the Norris-LaGuardia anti-injunction provisions apply — only when the offending activity is furthering the union’s economic interest in a labor dispute. E. g., Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad, 362 F.2d 649, 654-55 (5th Cir.), aff’d by an equally divided court, 385 U.S. 20, 87 S.Ct. 226, 17 L.Ed.2d 20 (1966) (labor dispute involved; secondary picketing not enjoinable where union “attempts to bring secondary pressure upon the employer with whom its primary dispute exists by means of [picketing] secondary employer, who has aligned himself with the primary employer in some substantial manner”); Lakefront Dock & Railroad Terminal Co. v. ILA, 333 F.2d 549, 553 (6th Cir. 1962) (labor dispute not involved; sympathy strike enjoinable where longshoremen’s union honoring picket line of seafarers’ union claims no economic interest in dispute between picketing seafarers’ union and owner of ship berthed at longshoremen’s dock); Amalgamated Association of Street Employees v. Dixie Motor Coach Corp., 170 F.2d 902 (8th" }, { "docid": "21489665", "title": "", "text": "involving or growing out of a labor dispute,” without regard to section 13(c) would be a patently incorrect approach to the interpretation of the statute here involved. Such a construction leads to the indefensible result that appellant-brotherhoods can picket and close down any terminal anywhere in the nation through which an FEC car passes. Merely because all parties to this action are either railroad employers or railroad unions and thus admittedly “engaged in the same industry,” does not justify the blind conclusion that they are therefore persons involved in a labor dispute or that any case to which they are parties grows out of or involves a labor dispute. “If any intelligent meaning is to be gathered from section 13, it is necessary that the several provisions of the section be read together, although grammatically its parts are independent. * * * [I]t is clear that the definition of ‘labor dispute’ given in subdivision (c) must be read into subdivisions (a) and (b). There cannot then be a ‘labor dispute’ unless there is a controversy between the disputants either ‘concerning terms or conditions of employment’ or concerning the ‘association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.’ ” Donnelly Garment Co. v. International Ladies’ Garment Workers’ Union, 20 F.Supp. 767, 770 (W.D. Mo.1937). My brothers on the bench “would have assumed” that secondary boycotts are within the anti-injunction protection of the act, but nevertheless stated that they would examine the question. Propounding the rather uncertain economic self-interest test, they concluded that the test was met from two viewpoints — that of defendant-picketers and that of the “responding employees of the secondary employers.” However, it does not appear that appellants in the case have conflicting or competing interests in any labor dispute. The court readily appreciates that appellee-railroads and FEC compete against each other in the market for freight and passenger customers. The logical evaluation of that competition, in basic terms of economic self-interests, supports the conclusion that appellees, FEC’s competitor railroads, would be benefited if affected at all by appellants’" }, { "docid": "3004837", "title": "", "text": "Cir. 1948) (labor dispute involved; court could not enjoin picketing of plaintiff’s bus depot where plaintiff provides facilities to struck bus company); Western Maryland R.R. Co. v. System Board of Adjustment, 465 F.Supp. 963, 973 (D.Md.1979) (labor dispute not involved; union on strike against primary railroad enjoined from picketing facilities of secondary railroads which do not interchange cars with primary railroad); Southern Railway v. Brotherhood of Railway Clerks, 458 F.Supp. 1189, 1191-92 (D.S.C. 1978) (labor dispute involved; secondary picketing not enjoinable where non-struck plaintiff railroad interchanging with struck railroad also participates in strike insurance plan with struck railroad); Terminal Railroad Association v. Brotherhood of Railway Clerks, 458 F.Supp. 100, 102-05 (E.D.Mo. 1978) (labor dispute not involved; secondary picketing enjoinable because facts do not show substantial alignment between non-struck plaintiff railroad and struck railroad); Consolidated Rail Corp. v. Brotherhood of Railway Clerks, 84 Lab.Cas. (CCH) 110,924 at 19,586-588 (W.D.N.Y.1978) (labor dispute not involved; picketing of non-struck railroad’s solely-owned facilities enjoinable; isolated instances of plaintiff’s supervisors performing work for struck railroad do not constitute substantial alignment); Alton & Southern Railway v. Brotherhood of Railway Clerks, 84 Lab.Cas. (CCH) 110,835 at 19,256-57 (D.D.C.), aff’d, (D.C. Cir. Sept. 15, 1978), cert. denied, 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 670 (1978) (labor dispute involved; picketing and sympathy strike not enjoinable because non- struck railroad has common interest with struck railroad by virtue of railroads’ participation in strike insurance plan); Illinois Central Railroad v. International Brotherhood of Teamsters Local 568, 90 F.Supp. 640, 643-45 (W.D.La.1950) (labor dispute not involved; picketing of non-struck railroad enjoinable where railroad’s sole connection with union-gravel company .dispute is railroad’s service performed for company at point “substantially removed from” company’s plant); Pacific Gamble Robinson Co. v. Minneapolis & St. Louis Railway, 85 F.Supp. 65, 66 (D.Minn.1949) (“[t]he purpose of the statute is to affect labor matters, not merely an interest in an industry, regardless of its relation to labor matters. Moreover, both parties must possess the required interest. Otherwise no relationship to a labor dispute would exist between the two.”); Gomez v. United Office & Professional Workers Local 16, 73" }, { "docid": "21489664", "title": "", "text": "so that the labor organization could act for employees by picketing an employer without being subject to injunction. 75 Cong.Rec. 4916 (1932) (remarks of Senator Wagner); Donnelly Garment Co. v. International Ladies’ Garment Workers’ Union, 20 F.Supp. 767, 771 (W.D.Mo.1937). See also 75 Cong.Rec. 5489 (1932) (remarks of Congressman Celler concerning Dail-Overland Co. v. Willys-Overland, Inc., 263 F. 171, 192 [N.D.Ohio 1920] [wherein strikers were held to be no longer “employees” under the Clayton Act]). It is clear that “ * * * the statutory classification, however broad, of parties and circumstances to which a ‘labor dispute’ may relate does not expand the application of the Act to include controversies upon which the employer-employee relationship has no bearing.” Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 146, 62 S.Ct. 520, 522, 86 L.Ed. 750 (1942). Subsection (a) of section 13 (29 U.S.C. § 113 [a]) defines the relationships of “persons” who may be parties to a “case” which arises out of a “labor dispute.” To take section 13(a) alone as a definition of “case involving or growing out of a labor dispute,” without regard to section 13(c) would be a patently incorrect approach to the interpretation of the statute here involved. Such a construction leads to the indefensible result that appellant-brotherhoods can picket and close down any terminal anywhere in the nation through which an FEC car passes. Merely because all parties to this action are either railroad employers or railroad unions and thus admittedly “engaged in the same industry,” does not justify the blind conclusion that they are therefore persons involved in a labor dispute or that any case to which they are parties grows out of or involves a labor dispute. “If any intelligent meaning is to be gathered from section 13, it is necessary that the several provisions of the section be read together, although grammatically its parts are independent. * * * [I]t is clear that the definition of ‘labor dispute’ given in subdivision (c) must be read into subdivisions (a) and (b). There cannot then be a ‘labor dispute’ unless there is a controversy" } ]

[ { "docid": "19921038", "title": "", "text": "well as vicarious liability for the actions of its former employee Rick Benson and Sheriff Van Wagoner. Quid pro quo harassment occurs when a supervisor carries out a threat to deny tangible job benefits based on the employee’s failure to submit to the supervisor’s sexual advances. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Liability for a “hostile work environment” exists when no explicit or constructive alterations in the terms or conditions of employment (i.e., “tangible employment actions”) occur but the sexual harassment was so severe or pervasive that it created an abusive working environment. Id.; Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Pinkerton v. Colorado Dep’t of Transp., 563 F.3d 1052, 1058 (10th Cir.2009). The primary distinction between these categories is whether the employee suffered a “tangible employment action.” See Ellerth, 524 U.S. at 751-52, 118 S.Ct. 2257. An employer may be directly or vicariously liable under either of the two theories. Ms. Kramer contends that Wasatch County is directly and vicariously liable because (a) she was sexually harassed by Sergeant Rick Benson, who acted as her supervisor or an agent of Wasatch County, and who subjected her to tangible adverse employment actions; and Wasatch County, through the actions of its agent Sheriff Van Wagoner, negligently responded to the harassment and Ms. Kramer’s complaints. From the record it appears that the Defendants concede for the limited purpose of summary judgment analysis that Rick Benson’s behavior amounted to actionable sexual harassment. But Defendants dispute Ms. Kramer’s assertions that Rick Benson was her supervisor, that she suffered a tangible employment action, that Wasatch County knew or should have known about the harassment but did not take appropriate action, and that Wasatch County is vicariously liable for the actions of Rick Benson and Sheriff Van Wagoner in creating or perpetuating a hostile work environment. Supervisor Ms. Kramer alleges that Rick Benson was her supervisor because he had sufficient control over the terms and conditions of her job. Nothing in the record shows that Sergeant" } ]

[ { "docid": "3555179", "title": "", "text": "but that alone is not sufficient to avoid vicarious liability. Harrison, 248 F.3d at 1026 (the fact that the harassment ends is not “sufficient by itself to avoid vicarious liability under Title VII for sexual harassment committed by a supervisory employee”). On this record, there remains a genuine issue of fact as to whether the County’s response to Ms. Kramer’s sexual harassment complaint fell short of demonstrating that the County took reasonable efforts to discharge its duty under Title VII, as required to establish the affirmative defense. Faragher, 524 U.S. at 806, 118 S.Ct. 2275. 2. Prong Two: Wasatch County’s evidence does not compel the conclusion that Ms. Kramer was unreasonable. The second prong of the affirmative defense requires the employer to “prove that the plaintiff unreasonably failed to avoid or reduce harm.” Suders, 542 U.S. at 146, 124 S.Ct. 2342. The County contended it was entitled to summary judgment on this prong because Ms. Kramer did not “take advantage of preventive or corrective opportunities provided by [Defendants]” in a timely manner. Aple. Br. at 8. It argued that Ms. Kramer’s excuse for failing to timely complain to the Sheriff — that she was scared Sergeant Benson would retaliate — was “not sufficient to explain a delay in reporting,” id. at 34, and that Ms. Kramer voluntarily put herself in situations in which she should have known she would be sexually harassed by Sergeant Benson. The district court agreed. Once again, our review of the record convinces us that fact questions remain on this issue. a. Ms. Kramer’s failure to lodge a formal complaint does not itself demonstrate unreasonableness as a matter of law. The County emphasizes that “Sheriff Van Wagoner never received a complaint from the plaintiff with regard to Benson’s actions.” Aple. Br. at 32 n.10. The district court agreed that this was inexcusable because Ms. Kramer “had followed” the procedures for reporting harassment “in the past.” Kramer, 857 F.Supp.2d at 1209. But the fact that Ms. Kramer had used County grievance procedures in the past to report other things done by co-workers does not by itself establish" }, { "docid": "3555195", "title": "", "text": "record evidence viewed in the light most favorable to Ms. Kramer fails to support an inference that the County had actual or constructive knowledge of Sergeant Benson’s sexual harassment before Ms. Kramer’s car accident. Accordingly, the County cannot be held liable for Sergeant Benson’s harassment on the basis of negligence. In assessing whether an employer was negligent in dealing with known harassment, “[ajctual knowledge will be demonstrable in most cases where the plaintiff has reported harassment to management-level employees.” Adler, 144 at 673. Although the Sheriff had actual knowledge of Ms. Kramer’s jail harassment by co-workers and the money-related harassment by Sergeant Benson, he did not have actual knowledge of the sexual harassment and sexual assaults by Sergeant Benson that form the core of Ms. Kramer’s hostile work environment claim. Ms. Kramer must therefore point to evidence that the County had constructive notice of the risk to which she was exposed. Ms. Kramer apparently seeks to premise constructive notice on the notion that Sergeant Benson was a “dangerous employee” whose tendencies the County should have known about, an approach to constructive notice we ratified in Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 783-84 (10th Cir.1995). To support her dangerous employee theory, Ms. Kramer contends the County knew of Sergeant Benson’s “history of rule-breaking” before he became her supervisor based on allegations that he had engaged in sexual misconduct with female confidential informants (CIs) when he worked in the narcotics unit, that he had fixed a ticket for a friend, and that he had taken a County vehicle out of the county. In addition to those incidents, which predate the events in this ease, Ms. Kramer points to specific complaints made during the relevant time period: her complaint to the Sheriff that Sergeant Benson was harassing her about the missing money,' Judge McCotter’s telling the Sheriff that Sergeant Benson was glaring intimidatingly at the female clerks, and the Sheriffs awareness that a female clerk suspected Sergeant Benson of having vandalized her car. An employer’s knowledge that the harasser had harassed people other than the plaintiff could be relevant to" }, { "docid": "3555139", "title": "", "text": "ever prosecuted. Ms. Kramer never returned to work for the Sheriffs Department. Ms. Kramer sued the County, alleging that the sexual harassment she experienced at the hands of Sergeant Benson constituted sex discrimination prohibited by both Title VII of the Civil Rights Act, 42 U.S.C. § 2000e — 2(a)(1), and the Constitution, 42 U.S.C. § 1983. The district court granted summary judgment to Wasatch County. The court held that Sergeant Benson was not Ms. Kramer’s supervisor for Title VII purposes because he did not have the actual authority to unilaterally fire her. It further held that supervisor status could not be premised on apparent authority because no reasonable juror could find Ms. Kramer reasonable in believing Sergeant Benson had the power to fire her. Even assuming Sergeant Benson was Ms. Kramer’s supervisor, the court concluded that Wasatch County was not vicariously liable for his conduct because Ms. Kramer suffered no tangible employment action and, alternatively, because Wasatch County was entitled to prevail on its Faragher/Ellerth affirmative defense as a matter of law. Finally, the court held that Wasatch County was not negligent and thus could not be liable for Sergeant Benson’s harassment under coworker harassment standards. As to Ms. Kramer’s § 1983 claims, the court determined that Sheriff Van Wagoner was entitled to qualified immunity, and that the County was not liable because it had no pattern, practice, or custom of illegal sex discrimination. Ms. Kramer appeals on all grounds. II We review a grant of summary judgment de novo. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir.2005). “[W]e will affirm the district court’s disposition only if our independent review of the record, viewing the facts in the light most favorable to [the nonmoving party], reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1207 (10th Cir.2010) (citing FED. R. CIV. P. 56). Sexual harassment in the workplace is a form of sex discrimination prohibited by Title VII. Adler v. Wal-Mart Stores, Inc.," }, { "docid": "3555168", "title": "", "text": "demonstrate that no disputed material fact exists regarding the affirmative defense asserted” when the evidence is viewed in the light most favorable to the plaintiff. Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir.2011) (internal quotation marks, omission, and alteration omitted). Even on undisputed facts, however, “the judgment call as to reasonableness is itself a jury issue unless no reasonable jury could decide it in the plaintiffs favor.” Reed, 333 F.3d at 34. Wasatch County has not supported its summary judgment motion with evidence that entitles it to judgment as a matter of law under either of the affirmative defense’s two prongs. 1. Prong One: Wasatch County’s evidence does not establish as a matter of law that the County took reasonable means to prevent and promptly correct sexual harassment. The first prong of the affirmative defense requires the employer to establish that it took reasonable care to both “prevent and correct promptly” sexual harassment. Helm, 656 F.3d at 1288. The County had a policy prohibiting sexual harassment and Ms. Kramer was aware of it. Rather than arguing that the policy was a substantively deficient form of prevention, Ms. Kramer’s appeal centers on whether the County took reasonable care to “promptly correct” sexual harassment. With respect to this prong, the district court concluded: [T]he Sheriff exercised reasonable care to promptly correct any sexual harassment of which he became aware. The record shows that whenever the Sheriff was actually informed about such type of behavior, he took immediate action. ... Ms. Kramer points to the Sheriffs re-enactment of harassment during the 2006 staff meeting as an example of unreasonable action that simply perpetuated the hostile work environment. Although that meeting was inartfully conducted by Sheriff Van Wagoner, it nevertheless was an attempt to promptly remediate the reported sexual harassment. It does not establish that the County failed to exercise reasonable care to remedy sexual harassment in the workplace. Kramer, 857 F.Supp.2d at 1208-09. In requiring Ms. Kramer to “establish” that the County failed to exercise reasonable care, the district court applied the wrong standard. Requiring the plaintiff to establish the employer’s unreasonableness" }, { "docid": "3555121", "title": "", "text": "SEYMOUR, Circuit Judge. Camille Kramer sued the Wasatch County Sheriffs Department, her former employer, for sexual harassment under Ti- tie VII of the Civil Rights Act and 42 U.S.C. § 1983. She appeals from the district court’s grant of summary judgment to Wasatch County on all claims. We affirm summary judgment as to the § 1983 claim but reverse on the Title VII claim, which we remand for trial for the reasons explained below. I On review of summary judgment, we recite the facts in the light most favorable to Ms. Kramer, the nonmovant. Monis v. City of Colo. Springs, 666 F.3d 654, 660 (10th Cir.2012). Viewed in that light, the facts are as follows. Camille Kramer worked for the Wasatch County Sheriffs Department from 2005 to 2007, first as a jailor and later as a bailiff. In 2005, while working in the jail, Ms. Kramer was subjected to offensive comments about her breasts, saw sexually offensive material on workplace computers, and frequently heard graphic sexual conversations. Ms. Kramer’s perception was that the male employees who engaged in this kind of conduct were not punished but instead were ultimately promoted, and that female employees who complained were given undesirable assignments and otherwise retaliated against. Ms. Kramer also experienced nonsexual harassment from her jail co-workers. In 2006, Ms. Kramer complained about the sexual and non-sexual harassment to Sheriff Kenneth Van Wagoner, the head of the Sheriffs Department. Sheriff Van Wagoner told Ms. Kramer he’d “take care of it.” Aplt.App. at 55. His response was to convene a staff meeting at which he asked for a volunteer. When Ms. Kramer volunteered, the Sheriff acted out the ex-' act harassing scenarios she had described to him, using her in the role of the victim. The Sheriff told the group: “[tjhat’s harassment. Don’t do it.” Id. at 56. Ms. Kramer found the Sheriffs method humiliating and ultimately ineffective. She testified that the harassment got worse after the meeting. When she complained to the Sheriff that the jail harassment had not stopped, he told her “[y]ou might want to avoid that area.” Aple. Supp.App. at" }, { "docid": "19921003", "title": "", "text": "2011 Order, the court held that genuine disputes of material fact precluded summary judgment on Ms. Kramer’s Title VII claims. (Id. at 2.) The court also dismissed Ms. Kramer’s § 1983 claims on the basis that such claims were not adequately pled. (See id. at 2 n. 2.) But now, upon reexamination of the issues and factual record (after supplemental briefing and hearings), the court reconsiders and reverses its decision in the March 2011 Order. For the reasons set forth below, the court holds that: (1) Wasatch County is not directly liable under Title VII for the actions of Rick Benson or Sheriff Van Wagoner; (2) Wasatch County has established the Ellerth/Faragher affirmative defense to Ms. Kramer’s Title VII vicarious liability claims; (3) Sheriff Van Wagoner is entitled to qualified immunity under § 1983; and (4) Wasatch County is not liable as a matter of law under § 1983 because there is no evidence of any custom, practice, or policy that created or supported the hostile work environment alleged by Ms. Kramer. Accordingly, Wasatch County and Sheriff Van Wagoner are entitled to summary judgment on all of Ms. Kramer’s remaining claims. FACTUAL BACKGROUND Former Wasatch County employee Camille Kramer alleges (with no dispute from the Defendants for purposes of the summary judgment analysis) that former Wasatch County employee Sergeant Richard “Rick” Benson made a series of unwanted sexual advances toward Ms. Kramer, including rape. Sergeant Benson’s actions are the foundation and catalyst for her Title VII sexual harassment and § 1983 claims against Wasatch County and Sheriff Van Wagoner. Employees and Supervisors at Wasatch County Plaintiff Camille Mae Kramer was a Wasatch County employee from July 2005 to July 2007. At the relevant times, Defendant Kenneth Van Wagoner was the Sheriff of Wasatch County, and, consequently, the department head of the Wasatch County Sheriff’s Office. Ms. Kramer was a POST-certified officer working toward the goal of becoming a police officer who worked “on the road.” Initially, Ms. Kramer worked as a jailer in the Wasatch County Jail. In the summer of 2006, she was promoted to the position of deputy" }, { "docid": "19921048", "title": "", "text": "prevent sexual harassment.” Id. at 1288. The fact that an employer conducted sexual harassment training also supports the conclusion that the employer exercised reasonable care to prevent sexual harassment. See, e.g., id. at 1288-89; Pinkerton, 563 F.3d at 1062. The Sheriffs Department, through Wasatch County, had a sexual harassment policy in place. Ms. Kramer knew about the policy. The Sheriffs Department also conducted training at least once a year. That is sufficient to establish an effort the prevent sexual harassment. See Helm, 656 F.3d at 1288-89; Pinkerton, 563 F.3d at 1062. Prompt Action Proper notice of a sexual harassment claim triggers the duty to take prompt corrective action. Helm 656 F.3d at 1290-91. “ ‘The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.’ ” Helm, 656 F.3d at 1290 (quoting Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir.2001)). Overall, the Sheriff exercised reasonable care to promptly correct any sexual harassment of which he became aware. The record shows that whenever the Sheriff was actually informed about such type of behavior, he took immediate action. Ms. Kramer points to the Sheriffs reenactment of harassment during the 2006 staff meeting as an example of unreasonable action that simply perpetuated the hostile work environment. Although that meeting was inartfully conducted by Sheriff Van Wagoner, it nevertheless was an attempt to promptly remediate the reported sexual harassment. It does not establish that the County failed to exercise rea sonable care to remedy sexual harassment in the workplace. Whether Ms. Kramer Unreasonably Failed to Take Advantage of Preventive or Corrective Opportunities or to Avoid Harm Otherwise Ms. Kramer does not dispute that she voluntarily went to Sergeant Benson’s house more than once, even after the harassment began (including the time after the rape when she went to his house to deliver a Coke to him when he asked). There is no evidence that she was compelled to do so. She could have avoided some of the encounters. Ms. Kramer did not report any of" }, { "docid": "3555194", "title": "", "text": "evidence here gives rise to inferences that Ms. Kramer’s fears were credible and that her behavior may have been reasonable given all the circumstances. The evidence of Sergeant Benson’s specific threats and actions, the power asymmetry between him and Ms. Kramer, the fact that Ms. Kramer was dealing with the trauma of having been sexually assaulted by her supervisor, and the County’s Title VII compliance efforts (or lack thereof) are relevant to whether Ms. Kramer’s behavior was “objectively unreasonable for one in her position.” Reed, 333 F.3d at 37. Accordingly, we reverse summary judgment for Wasatch County on both prongs of the Faragher/Ellerth defense. D. The district court correctly held that County liability could not be premised on negligence. If Sergeant Benson does not qualify as a supervisor but is only a co-worker, Ms. Kramer faces a greater burden: in order to establish a Title VII violation, she must show that the County had actual or constructive notice of the harassment and negligently failed to remedy or prevent it. Turnbull, 255 F.3d at 1244. The record evidence viewed in the light most favorable to Ms. Kramer fails to support an inference that the County had actual or constructive knowledge of Sergeant Benson’s sexual harassment before Ms. Kramer’s car accident. Accordingly, the County cannot be held liable for Sergeant Benson’s harassment on the basis of negligence. In assessing whether an employer was negligent in dealing with known harassment, “[ajctual knowledge will be demonstrable in most cases where the plaintiff has reported harassment to management-level employees.” Adler, 144 at 673. Although the Sheriff had actual knowledge of Ms. Kramer’s jail harassment by co-workers and the money-related harassment by Sergeant Benson, he did not have actual knowledge of the sexual harassment and sexual assaults by Sergeant Benson that form the core of Ms. Kramer’s hostile work environment claim. Ms. Kramer must therefore point to evidence that the County had constructive notice of the risk to which she was exposed. Ms. Kramer apparently seeks to premise constructive notice on the notion that Sergeant Benson was a “dangerous employee” whose tendencies the County should have" }, { "docid": "19921045", "title": "", "text": "support her conclusion. Sheriff Van Wagoner did not know (nor could he have known, based on the admissible record before the court) about Sergeant Benson’s sexual harassment of Ms. Kramer. Ms. Kramer did not report any of Sergeant Benson’s sexual harassment to Sheriff Van Wagoner or any coworker until July 2007. Sergeant Benson’s sexual advances all occurred outside the courthouse, and Sheriff Van Wagoner testified that he never saw Sergeant Benson engage in sexually harassing behavior. Although Ms. Kramer did report harassment by jealous co-workers in the jail and harassment by Sergeant Benson during the missing money investigation, there was nothing to indicate that those incidents of harassment were sexual in nature or based on gender. Sheriff Van Wagoner took steps to stop sexual harassment when he was informed about it (e.g., the “babe of the day” screen saver, the pornography incident, and sexual comments made by male jail employees). And, despite Ms. Kramer’s contention to the contrary, no evidence supports the assertion that Sergeant Benson had a history of sexual harassment, much less that the Sheriff knew of any such alleged history. Indeed, much of what Ms. Kramer relies on to defend against the summary judgment motion is speculation and inadmissible hearsay. No reasonable jury could find that Wasatch County knew or should have known about Sergeant Benson’s sexual harassment of Ms. Kramer. Accordingly, it has no direct liability under Title VII and is entitled to summary judgment on that claim. Vicarious Liability and the Ellerth/Faragher Defense An employer may be held vicarious liable “for actionable sexual harassment perpetrated by a supervisor with immediate (or successively higher) authority over the victimized employee in two situations.” Helm, 656 F.3d at 1285. The first situation is when the supervisor’s sexual harassment culminates in an adverse tangible employment action. Id. (citing Faragher, 524 U.S. at 808, 118 S.Ct. 2275). In that situation, the employer does not have any affirmative defense to vicarious liability. Pinkerton v. Colorado Dep’t of Transp., 563 F.3d 1052, 1059 (10th Cir.2009) (citing Ellerth, 524 U.S. at 765, 118 S.Ct. 2257). In the second situation, where no tangible adverse" }, { "docid": "3555201", "title": "", "text": "Turnbull was sexually assaulted by a mental patient at the hospital where she worked. 255 F.3d at 1242. We held that constructive notice to the hospital could be premised on pervasiveness-plus where hqspital staff were aware that “sexual acting out” by patients was an “issue that arose regularly,” a risk whose dangers were “highlighted when a female employee was murdered by a patient” a year before the plaintiff joined the staff, and where the hospital made the plaintiff sign a form acknowledging that her job description included “the risk of assault by patients.” Id. at 1241-42, 1244. Similarly, we found a jury question on pervasiveness — plus in Hirase-Doi, where the harasser was known to have harassed “at least eight to ten different women during his three month tenure” with the employer. 61 F.3d at 784. In contrast to those cases, the facts proffered by Ms. Kramer for pervasiveness-plus do not include allegations that Sergeant Benson was previously accused of sexually harassing anyone, as were the facts in Hirase-Doi, or that the risk of being sexually assaulted was obvious and known to the employer, as were the facts in Turnbull. Nor is the conduct Ms. Kramer points to as the basis for notice— offensive materials on computers, offensive discussions, and the foot-rub note — substantively similar to the type of sexual harassment she experienced. No reasonable jury could conclude that these incidents add up to sexual harassment required to establish constructive notice. Baker, 903 F.2d at 1346. The record simply does not contain sufficient evidence from which a jury could find that the County had constructive notice on a pervasiveness-plus theory. Because there is insufficient evidence to create a fact question on knowledge, we need not address the second element of the negligence inquiry, which is whether the employer responded adequately to known or constructively known harassment. We affirm the district court’s conclusion that County liability under Title VII cannot be premised on negligence. Ill Ms. Kramer also contends the County and Sheriff Van Wagoner violated her constitutional equal protection rights. Sexual harassment under color of state law violates the" }, { "docid": "3555207", "title": "", "text": "Sheriff knew or should have known about Sergeant Benson’s sexual harassment but did not adequately act to stop it. We accordingly interpret Ms. Kramer’s § 1983 causality theory as one of liability by inaction. Where a plaintiff seeks to create §' 1983 municipal liability for failing to prevent the bad acts of a subordinate, the plaintiff must show that the municipality evidenced “deliberate indifference” to the impermissible conduct. City of Canton, 489 U.S. at 389, 109 S.Ct. 1197. It does not suffice that a prevention program has merely been “negligently administered.” Id. at 391, 109 S.Ct. 1197. Ms. Kramer must establish that the County failed to prevent sexual harassment with “deliberate indifference,” that the need for more or different action was “so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” Id. at 389-90, 109 S.Ct. 1197. On the record in this case, no reasonable jury could find that the risk of sergeants sexually assaulting their subor dinates was “so obvious” the County’s policymakers should have known about it. Nor would the particular risks posed by Sergeant Benson meet the obviousness threshold for the reasons we discussed when we examined Ms. Kramer’s negligence claim. Because the record does not support a determination that the County was negligent, it certainly does not support a finding that the County was deliberately indifferent. We therefore affirm summary judgment for the County on Ms. Kramer’s § 1983 claims. IV We REVERSE the district court’s grant of summary judgment to the County on Ms. Kramer’s Title VII claim with respect to Sergeant Benson’s supervisor status and the County’s Faragher/EUerth defense. We AFFIRM in all other respects. We remand the case to the district court for further proceedings in keeping with this opinion. . The district court said it was \"not clear” whether Ms. Kramer's complaint to the Sheriff had to do with sexual or purely non-sexual harassment. Kramer v. Wasatch Cnty., 857 F.Supp.2d 1190, 1199 (D.Utah 2012). However, the Sheriff testified that" }, { "docid": "3555165", "title": "", "text": "the road because each could only be a tangible employment action if it had deleterious economic consequences or reduced her opportunities for advancement. Ellerth, 524 U.S. at 761-62, 118 S.Ct. 2257; Vance, 133 S.Ct. at 2447 n. 9. Unfortunately for Ms. Kramer, there is simply no evidence in the record to support that theory. Her brief asserts that road training was necessary for promotions. Yet in her deposition, Ms. Kramer stated that she was offered a “road officer” position before she even began working as a bailiff, but did not take it because she did not live in Wasatch County at the time, which was required. She also testified that promotions occurred on the basis of “the order you were hired.” ApleApp. at 4. No testimony or evidence supports Ms. Kramer’s claim that road training was necessary or even helpful for a promotion. To survive summary judgment, Ms. Kramer cannot rest upon the allegations in her brief but “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal quotation marks omitted). “[S]he easily could have avoided [this problem] simply by testifying, if she was able to do so,” that road training was in fact somehow related to promotions. See Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1087-88 (10th Cir.2007). Without such evidence, there is no genuine issue for trial. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. For the foregoing reasons, we affirm the district court’s conclusion that no tangible employment action occurred. C. The Faragher/Ellerth defense Even absent a tangible employment action, if Sergeant Benson qualifies as a “supervisor” the County is vicariously liable for his severe or pervasive sexual harassment unless it can establish the affirmative defense announced in Faragher, 524 U.S. at 807, 118 S.Ct. 2275, and Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. This defense has “two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed" }, { "docid": "3555171", "title": "", "text": "F.Supp.2d at 1208-09, does not automatically entitle the County to judgment as a matter of law. Not just any response to sexual harassment establishes reasonable efforts to comply with Title VII. Employer responses must also meet minimal standards of quality that reflect the preventive purpose of Title VII and the Faragher/Ellerth defense. A showing that an employer made “an attempt to promptly remediate the reported sexual harassment,” id. at 1208, without any showing that such attempts were “reasonably calculated to end the harassment” and deter future harassers, does not entitle the County to judgment as a matter of law. See Adler, 144 F.3d at 676. The County did not provide any evidence that the Sheriff Department’s interventions were reasonably calculated to end the harassment, deter future harassers, or protect Ms. Kramer. The parties hotly dispute what happened at the meeting called by the Sheriff in response to Ms. Kramer’s initial complaint about harassment in the jail, and Ms. Kramer testified that the harassment did not stop after that meeting. While her perceptions regarding that meeting are relevant to her own reasonableness under Faragher’s second prong, as we discuss infra, we need not decide what that meeting does or does not say about the County’s efforts to comply with Title VII because the undisputed facts about the County’s response to Ms. Kramer’s subsequent allegations against Sergeant Benson are enough to preclude judgment as a matter of law for the County on Faragher’s first prong. When the Sheriff first learned of the allegations, he initiated an investigation into what he referred to as “some sex” or “sexual misconduct” between Ms. Kramer and Sergeant Benson which, he explained, is “a violation of our policy and procedure, ... especially if it’s on-duty.” Aple. Supp.App. at 166. It is unclear if he perceived the putative policy violation as sexual harassment or simply as a prohibited in-tra-office relationship between a supervisor and his subordinate. See id. at 171 (the Sheriff explained that because Sergeant Benson was Ms. Kramer’s “supervisor ... POST does not condone that kind of relationship”). The Sheriff did not consult the County’s' human" }, { "docid": "3555170", "title": "", "text": "is the standard for analyzing Wasatch County’s liability under a negligence theory. Adler, 144 F.3d at 677. But the Faragher/Ellerth framework functions by obviating the need for the plaintiff to plead or prove negligence where the harasser is a supervisor. Ellerth, 524 U.S. at 747, 118 S.Ct. 2257 (question presented, and answered in the affirmative, is whether an employee “can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions” (emphasis added)). Because the burden to prove the defense is the employer’s, summary judgment on the affirmative defense cannot be entered on the basis of anything the plaintiff failed to do until the defendant has supported its motion with evidence “that would entitle it to a directed verdict if not controverted at trial.” Anderson, 907 F.2d at 947 (internal quotation marks omitted). Wasatch County’s evidence that it took reasonable measures to promptly correct sexual harassment falls short of this standard. The County’s evidence that the Sheriff responded to sexual harassment “of which he became aware,” Kramer, 857 F.Supp.2d at 1208-09, does not automatically entitle the County to judgment as a matter of law. Not just any response to sexual harassment establishes reasonable efforts to comply with Title VII. Employer responses must also meet minimal standards of quality that reflect the preventive purpose of Title VII and the Faragher/Ellerth defense. A showing that an employer made “an attempt to promptly remediate the reported sexual harassment,” id. at 1208, without any showing that such attempts were “reasonably calculated to end the harassment” and deter future harassers, does not entitle the County to judgment as a matter of law. See Adler, 144 F.3d at 676. The County did not provide any evidence that the Sheriff Department’s interventions were reasonably calculated to end the harassment, deter future harassers, or protect Ms. Kramer. The parties hotly dispute what happened at the meeting called by the Sheriff in response to Ms. Kramer’s initial complaint about harassment in the jail, and Ms. Kramer testified that the harassment did not stop after that meeting. While her perceptions regarding that meeting" }, { "docid": "3555169", "title": "", "text": "than arguing that the policy was a substantively deficient form of prevention, Ms. Kramer’s appeal centers on whether the County took reasonable care to “promptly correct” sexual harassment. With respect to this prong, the district court concluded: [T]he Sheriff exercised reasonable care to promptly correct any sexual harassment of which he became aware. The record shows that whenever the Sheriff was actually informed about such type of behavior, he took immediate action. ... Ms. Kramer points to the Sheriffs re-enactment of harassment during the 2006 staff meeting as an example of unreasonable action that simply perpetuated the hostile work environment. Although that meeting was inartfully conducted by Sheriff Van Wagoner, it nevertheless was an attempt to promptly remediate the reported sexual harassment. It does not establish that the County failed to exercise reasonable care to remedy sexual harassment in the workplace. Kramer, 857 F.Supp.2d at 1208-09. In requiring Ms. Kramer to “establish” that the County failed to exercise reasonable care, the district court applied the wrong standard. Requiring the plaintiff to establish the employer’s unreasonableness is the standard for analyzing Wasatch County’s liability under a negligence theory. Adler, 144 F.3d at 677. But the Faragher/Ellerth framework functions by obviating the need for the plaintiff to plead or prove negligence where the harasser is a supervisor. Ellerth, 524 U.S. at 747, 118 S.Ct. 2257 (question presented, and answered in the affirmative, is whether an employee “can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions” (emphasis added)). Because the burden to prove the defense is the employer’s, summary judgment on the affirmative defense cannot be entered on the basis of anything the plaintiff failed to do until the defendant has supported its motion with evidence “that would entitle it to a directed verdict if not controverted at trial.” Anderson, 907 F.2d at 947 (internal quotation marks omitted). Wasatch County’s evidence that it took reasonable measures to promptly correct sexual harassment falls short of this standard. The County’s evidence that the Sheriff responded to sexual harassment “of which he became aware,” Kramer, 857" }, { "docid": "3555209", "title": "", "text": "he gave a training session regarding sexual harassment in response to the complaint. Moreover, we are required to accept Ms. Kramer's version of the facts for summary judgment purposes, so we assume that Ms. Kramer's complaint related to the sexual as well as non-sexual harassment to which she had been subjected.- . POST stands for Peace Officer Standards and Training. . Whether the harassment was sufficiently severe or pervasive is not disputed on appeal. . The Second, Fourth, and Ninth Circuits held that a supervisor for Title VII purposes is one who has the power to direct the plaintiff’s daily work activities. See Mack v. Otis Elevator Corp., 326 F.3d 116, 125 (2d Cir.2003); Whitten v. Fred’s, Inc., 601 F.3d 231, 245 (4th Cir.2010); Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir.2011). The First, Seventh, and Eighth Circuits, by contrast, defined supervisor more narrowly to refer only to someone with the power to take tangible employment actions such as hiring, firing, demoting, promoting, transferring, or disciplining the victim. See Noviello v. City .óf Bos., 398 F.3d, 76, 95-96 (1st Cir.2005); Parkins v. Civil Constructors of Ill., 163 F.3d 1027, 1034-1035 (7th Cir.1998); Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir.2004). We appear to have taken a hybrid approach finding supervisor status in a harasser who was ''in charge of delegating duties and assigning work to plaintiff,” but who was also “involved in the disciplinary process.” Harrison v. Eddy Potash Inc., 248 F.3d 1014, 1016 (10th Cir.2001); see also Rubidoux v. Colo. Mental Health Inst., 173 F.3d 1291, 1292-93 (10th Cir.1999) (\"[Supervisor] could not alone make hiring and firing decisions, [but] interviewed both plaintiffs, and his recommendation was 'quite possibly' the sole basis for their hiring.... [He] set schedules, granted leave, conducted performance reviews, and could initiate hearings to formally consider employee performance.”). . \"Q: Who was in charge of Camille Kramer’s evaluation? A: It would have been Rick Benson.” Aple.App. at 163 (Van Wagoner Dep.); Aplt.App. at 176 (performance evaluation of Kramer signed by Benson). . The Sheriff’s Office Policies and Procedures Manual stated that" }, { "docid": "3555172", "title": "", "text": "are relevant to her own reasonableness under Faragher’s second prong, as we discuss infra, we need not decide what that meeting does or does not say about the County’s efforts to comply with Title VII because the undisputed facts about the County’s response to Ms. Kramer’s subsequent allegations against Sergeant Benson are enough to preclude judgment as a matter of law for the County on Faragher’s first prong. When the Sheriff first learned of the allegations, he initiated an investigation into what he referred to as “some sex” or “sexual misconduct” between Ms. Kramer and Sergeant Benson which, he explained, is “a violation of our policy and procedure, ... especially if it’s on-duty.” Aple. Supp.App. at 166. It is unclear if he perceived the putative policy violation as sexual harassment or simply as a prohibited in-tra-office relationship between a supervisor and his subordinate. See id. at 171 (the Sheriff explained that because Sergeant Benson was Ms. Kramer’s “supervisor ... POST does not condone that kind of relationship”). The Sheriff did not consult the County’s' human resources professional about the allegations or ask him for advice as to what to do. Instead, the Sheriff assigned the investigation to Detective Brian Gardner, not because Detective Gardner had any specific qualifications for this task but because he “was the unfortunate guy that was on-duty on that particular day.” Id. at 167. Moreover, Detective Gardner had been Mends with Sergeant Benson for over ten years and considered him' a mentor. In addition, the fact that Detective Gardner was never trained to investigate a complaint of sexual harassment is relevant to whether the County’s efforts were deficient. See Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1239 (10th Cir.1999), overruled on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061,153 L.Ed.2d 106 (2002). Nor did the Sheriff give Detective Gardner any “policy or procedures on how to conduct the investigation.” Aple. Supp. App. at 171. The Sheriff explained that he gave Detective Gardner no such instructions because “[w]e don’t have any real hard-set investigative standards policy ... other than" }, { "docid": "3555178", "title": "", "text": "that the Department need not continue to investigate. He reported Ms. Kramer to POST for having relations with the County firefighter and he asked Todd Hull, the person investigating Ms. Kramer for the missing money, to “please handle” the rape investigation. Aple. Supp.App. 166-67. The Sheriff said: “basically my end of [the investigation] was completed within a couple of days.” Id. at 167. The evidence shows that Todd Hull handled the investigation as a purely criminal matter. There is no evidence the Department sought to improve its sexual harassment prevention program or otherwise reduce the “risk of future harassment.” Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1529 (9th Cir.1995). “An employer’s failure to fully investigate a complaint supports a finding that its response was inadequate .... Moreover, an employer’s decision to do nothing on the basis of an inadequate investigation likewise supports a finding that the employer did not take prompt and effective remedial action.” Wilson v. Tulsa Junior Coll., 164 F.3d 534, 543 n. 7 (10th Cir.1998). Sergeant Benson did ultimately resign, but that alone is not sufficient to avoid vicarious liability. Harrison, 248 F.3d at 1026 (the fact that the harassment ends is not “sufficient by itself to avoid vicarious liability under Title VII for sexual harassment committed by a supervisory employee”). On this record, there remains a genuine issue of fact as to whether the County’s response to Ms. Kramer’s sexual harassment complaint fell short of demonstrating that the County took reasonable efforts to discharge its duty under Title VII, as required to establish the affirmative defense. Faragher, 524 U.S. at 806, 118 S.Ct. 2275. 2. Prong Two: Wasatch County’s evidence does not compel the conclusion that Ms. Kramer was unreasonable. The second prong of the affirmative defense requires the employer to “prove that the plaintiff unreasonably failed to avoid or reduce harm.” Suders, 542 U.S. at 146, 124 S.Ct. 2342. The County contended it was entitled to summary judgment on this prong because Ms. Kramer did not “take advantage of preventive or corrective opportunities provided by [Defendants]” in a timely manner. Aple. Br. at" }, { "docid": "3555208", "title": "", "text": "sergeants sexually assaulting their subor dinates was “so obvious” the County’s policymakers should have known about it. Nor would the particular risks posed by Sergeant Benson meet the obviousness threshold for the reasons we discussed when we examined Ms. Kramer’s negligence claim. Because the record does not support a determination that the County was negligent, it certainly does not support a finding that the County was deliberately indifferent. We therefore affirm summary judgment for the County on Ms. Kramer’s § 1983 claims. IV We REVERSE the district court’s grant of summary judgment to the County on Ms. Kramer’s Title VII claim with respect to Sergeant Benson’s supervisor status and the County’s Faragher/EUerth defense. We AFFIRM in all other respects. We remand the case to the district court for further proceedings in keeping with this opinion. . The district court said it was \"not clear” whether Ms. Kramer's complaint to the Sheriff had to do with sexual or purely non-sexual harassment. Kramer v. Wasatch Cnty., 857 F.Supp.2d 1190, 1199 (D.Utah 2012). However, the Sheriff testified that he gave a training session regarding sexual harassment in response to the complaint. Moreover, we are required to accept Ms. Kramer's version of the facts for summary judgment purposes, so we assume that Ms. Kramer's complaint related to the sexual as well as non-sexual harassment to which she had been subjected.- . POST stands for Peace Officer Standards and Training. . Whether the harassment was sufficiently severe or pervasive is not disputed on appeal. . The Second, Fourth, and Ninth Circuits held that a supervisor for Title VII purposes is one who has the power to direct the plaintiff’s daily work activities. See Mack v. Otis Elevator Corp., 326 F.3d 116, 125 (2d Cir.2003); Whitten v. Fred’s, Inc., 601 F.3d 231, 245 (4th Cir.2010); Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir.2011). The First, Seventh, and Eighth Circuits, by contrast, defined supervisor more narrowly to refer only to someone with the power to take tangible employment actions such as hiring, firing, demoting, promoting, transferring, or disciplining the victim. See Noviello v. City .óf" }, { "docid": "3555193", "title": "", "text": "hindsight) to refuse to go to the harasser’s house again after the first instance. But there is a long continuum separating behavior that is less-than-perfect from behavior that is unreasonable as a matter of law, see, e.g., Reed, 333 F.3d at 35; Gorzynski, 596 F.3d at 104-05. Title VII does not require employees who are already “run[ning] a gauntlet of sexual abuse” at work, Meritor, 477 U.S. at 68, 106 S.Ct. 2399 (internal quotation marks and citation omitted), to figure out how to effectively stop their harasser or forfeit any legal remedy. See Gorzynski 596 F.3d at 104-05. Ultimately, whether the sexual conduct was “unwelcome” and whether Ms. Kramer was unreasonable in participating in it “present[ ] difficult problems of proof and turn[ ] largely on credibility determinations committed to the trier of fact.” Meritor, 477 U.S. at 68, 106 S.Ct. 2399; see also Reed, 333 F.3d at 35-36 (plaintiff who was coerced by her supervisor to babysit at his house where he sexually assaulted her was not unreasonable as a matter of law). The evidence here gives rise to inferences that Ms. Kramer’s fears were credible and that her behavior may have been reasonable given all the circumstances. The evidence of Sergeant Benson’s specific threats and actions, the power asymmetry between him and Ms. Kramer, the fact that Ms. Kramer was dealing with the trauma of having been sexually assaulted by her supervisor, and the County’s Title VII compliance efforts (or lack thereof) are relevant to whether Ms. Kramer’s behavior was “objectively unreasonable for one in her position.” Reed, 333 F.3d at 37. Accordingly, we reverse summary judgment for Wasatch County on both prongs of the Faragher/Ellerth defense. D. The district court correctly held that County liability could not be premised on negligence. If Sergeant Benson does not qualify as a supervisor but is only a co-worker, Ms. Kramer faces a greater burden: in order to establish a Title VII violation, she must show that the County had actual or constructive notice of the harassment and negligently failed to remedy or prevent it. Turnbull, 255 F.3d at 1244. The" } ]

[ { "docid": "13469051", "title": "", "text": "N.R.R., 133 B.R. 648, 653 (D.Minn.1991). In a case following its decision in Frenville, the Third Circuit considered whether a contingent claim for contribution under CERCLA could arise before CERCLA was enacted. The court held, “[I]t was not until the passage of CERCLA that a legal relationship was created between the [parties] relevant to the petitioners’ potential causes of action such that an interest could flow.” In re Penn Cent. Transp. Co., 944 F.2d 164, 168 (3d Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992). The court did not cite Frenville but instead relied on Schweitzer v. Consolidated Rail Carp., 758 F.2d 936, 942 (3d Cir.) (claims of plaintiffs asserting tort causes of action under Federal Employers’ Liability Act did not arise until plaintiffs suffered identifiable, compensable injuries), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985). The Seventh Circuit has also considered this issue. In In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 974 F.2d 775, the state of Washington took soil samples and conducted tests concerning possible contamination at a railyard formerly owned by the debtor in bankruptcy. Shortly before the consummation date, the test results were obtained, indicating that contamination had taken place. The state did not file a proof of claim before the relevant bar date. The court held: when a potential CERCLA claimant can tie the bankruptcy debtor to a known release of a hazardous substance which this potential claimant knows will lead to CERCLA response costs, and when this potential claimant has, in fact, conducted tests with regard to this contamination problem, then this potential claimant has, at least, a contingent CERCLA claim for purposes of Section 77. Id. at 786. A different approach — the one utilized by the BAP in reversing the bankruptcy court’s decision in this case — counsels that the bankruptcy claim arises at the time of the debt- or’s conduct relating to the contamination. In re Jensen, 127 B.R. at 32-33. In other words, response costs expended by a California DHS or EPA are dischargeable where they result from pre-petition" } ]

[ { "docid": "1121478", "title": "", "text": "proceeds that the right to payment under CERCLA or HSA does not arise until cleanup costs are incurred. DHS thus argues that until cleanup costs are incurred, no right to payment, and no cognizable claim, exists for bankruptcy purposes. This theory has been adopted by at least one circuit court. In In re Frenville, 744 F.2d 332 (3rd Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985), a creditor appealed a district court order holding the creditor’s indemnity action against the Chapter 7 debtor was barred by the automatic stay. While the debtor’s acts underlying the indemnity occurred prepetition, the suit against the creditor was filed postpetition, prompting the indemnification action. In determining when the claim originated, the Third Circuit first noted the Bankruptcy Code does not clearly define when a “right to payment” arises, and therefore applied state law. Id. at 337. The relevant state law declared a right to payment on an indemnity arises upon payment of the judgment flowing from the act. The Frenville court then concluded the suit against the creditor had been filed postpetition, the creditor’s claim therefore arose postpetition, and the automatic stay did not apply. Id. The court in United States v. Union Scrap Iron & Metal, 123 B.R. 831 (D.Minn.1990), cited by the DHS, adopted the same reasoning, although without mention of Frenville. However, Frenville has been roundly criticized by several courts. As stated in In re A.H. Robins Co., 63 B.R. 986, 992 (Bankr.E.D.Va.1986), the Frenville court confuses “a ‘right to payment’ for federal bankruptcy purposes with the accrual of a cause of action for state law purposes.” Indeed, under Frenville and Union Scrap Iron we can perceive no difference between claims inside or outside bankruptcy. Such an interpretation simply is unwarranted from a reading of § 101(4), which includes contingent and unmatured rights to payment, as well as those having been reduced to judgments. Further, holding that the cause of action, or in the present case, the statutory right to payment, triggers recognition of the bankruptcy claim contravenes the overriding goal of the Bankruptcy Code to" }, { "docid": "18497298", "title": "", "text": "thus are not dischargeable debts in the bankruptcy. A debt, for purposes of bankruptcy, is defined as “liability on a claim.” 11 U.S.C. § 101(11). A claim is defined as: (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; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured[.] 11 U.S.C. § 101(4). In order for AL Tech’s response costs to be dischargeable, they must amount to a bankruptcy claim. Ko-vacs, 469 U.S. at 278-81, 105 S.Ct. at 707-09. The Bankruptcy Code does not create claims. Instead, “a bankruptcy claim must be based on state or federal law that, ‘wholly apart from bankruptcy,’ creates substantive obligations.” Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 941 (3d Cir.) (quoting Vanston Bondholder’s Protective Committee v. Green, 329 U.S. 156, 170, 67 S.Ct. 237, 243, 91 L.Ed. 162 (1946) (Frankfurter, J., concurring)), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); In re Remington Rand Corp., 836 F.2d 825, 830 (3d Cir. claim depends on: (1) whether the claimant possessed a right to payment, and (2) whether that right arose before the bankruptcy. Remington Rand, 836 F.2d at 830; In re M. Frenville Company, 744 F.2d 332, 336 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985). The timing of the existence of a right to payment is determined in accordance with the substantive law creating the obligation. Schweitzer, 758 F.2d at 942; Frenville, 744 F.2d at 336-37. Thus, the determination of whether AL Tech’s CERCLA liabilities are dischargeable depends on whether AL Tech possessed a pre-petition right to recover payment for such liabilities. Under CERCLA, a party may recover, inter alia, “necessary costs of response incurred by any ... person consistent with the national contingency plan.” 42 U.S.C. § 9607(a). The language of §" }, { "docid": "1121479", "title": "", "text": "suit against the creditor had been filed postpetition, the creditor’s claim therefore arose postpetition, and the automatic stay did not apply. Id. The court in United States v. Union Scrap Iron & Metal, 123 B.R. 831 (D.Minn.1990), cited by the DHS, adopted the same reasoning, although without mention of Frenville. However, Frenville has been roundly criticized by several courts. As stated in In re A.H. Robins Co., 63 B.R. 986, 992 (Bankr.E.D.Va.1986), the Frenville court confuses “a ‘right to payment’ for federal bankruptcy purposes with the accrual of a cause of action for state law purposes.” Indeed, under Frenville and Union Scrap Iron we can perceive no difference between claims inside or outside bankruptcy. Such an interpretation simply is unwarranted from a reading of § 101(4), which includes contingent and unmatured rights to payment, as well as those having been reduced to judgments. Further, holding that the cause of action, or in the present case, the statutory right to payment, triggers recognition of the bankruptcy claim contravenes the overriding goal of the Bankruptcy Code to provide a “fresh start” for the debtor. Grogan v. Garner, — U.S. -, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). In a no-asset Chapter 7 case, like the one at hand, manipulation will surely result. The creditor, aware of a debtor’s precarious financial situation, will delay expenditures in anticipation of the debtor’s bankruptcy, thereby preventing discharge of the creditor’s claims. Additionally, debtors having attentive creditors will be denied the benefit of bankruptcy’s fresh start, although enjoyed by other debtors similarly situated but whose creditors are less well-informed. Such untenable results cannot be endorsed. DHS offers cases which hold private causes of action under CERCLA do not arise until cleanup costs are incurred. See Levin Metals Comp. v. Parr-Richmond Terminal Co., 799 F.2d 1312, 1316 (9th Cir.1986); Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F.Supp. 1437, 1450-1452 (S.D.Fla.1984). However, neither of these cases involved bankruptcy nor required determination of when a bankruptcy claim arises, but rather only determined that a private action under CERCLA could not be commenced prior to incurrence of cleanup costs. We" }, { "docid": "18497299", "title": "", "text": "U.S. 156, 170, 67 S.Ct. 237, 243, 91 L.Ed. 162 (1946) (Frankfurter, J., concurring)), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); In re Remington Rand Corp., 836 F.2d 825, 830 (3d Cir. claim depends on: (1) whether the claimant possessed a right to payment, and (2) whether that right arose before the bankruptcy. Remington Rand, 836 F.2d at 830; In re M. Frenville Company, 744 F.2d 332, 336 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985). The timing of the existence of a right to payment is determined in accordance with the substantive law creating the obligation. Schweitzer, 758 F.2d at 942; Frenville, 744 F.2d at 336-37. Thus, the determination of whether AL Tech’s CERCLA liabilities are dischargeable depends on whether AL Tech possessed a pre-petition right to recover payment for such liabilities. Under CERCLA, a party may recover, inter alia, “necessary costs of response incurred by any ... person consistent with the national contingency plan.” 42 U.S.C. § 9607(a). The language of § 9607(a) mandates the conclusion that a § 9607(a) cause of action does not accrue until response costs are incurred. See, e.g., United States v. Price, 577 F.Supp. 1103, 1110 (D.N.J.1983) (“the government must first begin the cost of the cleanup and incur some expenses before it can initiate an action” under § 9607(a)); In re Jensen, 114 B.R. 700, 702-03 (Bankr.E.D.Cal.1990) (claim for response costs does not arise until costs are actually incurred). CERCLA does not define the term “necessary costs of response,” but does define “response” as “remove, removal, remedy, and remedial action.” 42 U.S.C. § 9601(25). The terms “remove” and “removal” are defined as including such actions as may be necessary (sic) taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health" }, { "docid": "8880659", "title": "", "text": "in 1986. Although this action was filed in 1998, MDL claims that Plaintiffs’ claims were discharged because “Mason and Dixon’s liability to Plaintiffs depends on whether Mason and Dixon is potentially liable to the United States,” and Mason and Dixon’s potential liability to the United States itself was discharged by MDL’s bankruptcy. Mem. In Supp. of Def.’s Mot. For J. On The Pleadings at 3-4 (Doc. # 218-1, Case # 98-CV-02777). In response, Plaintiffs argue that their claims are not solely derivative of the United States’ claims but are independent statutory claims “which clearly arose after defendant’s bankruptcy in the mid-1980s.” Mem. In Support of Pls.’ Opp. To Def.’s Mot. For J. On The Pleadings at 4 (Doc. # 227-1, Case # 98-cv-02777). MDL counters by stating that Plaintiffs can only sue for contribution under § 113 of CERCLA. As a result, according to In re Reading Co., 115 F.3d 1111, 44 ERC 1865 (3rd Cir.1997), Plaintiffs’ claims must be derivative of those of the United States. Reply Of Def. In Supp. Of Mot. For J. On The Pleadings at 3-4 (Doc. #234-1, Case # 98-cv-02777) (citation omitted). In In re Reading Co., the Third Circuit addressed whether the plaintiffs § 113(f) contribution claim against defendant Reading was discharged by Reading’s bankruptcy. After reviewing traditional concepts of contribution as well as the statutory text of § 113(f), the court held that § 113(f) “does not permit contribution among liable parties who do not have a common derivation of liability.” In re Reading Co., 115 F.3d at 1123. Thus, the court concluded, for the defendant to be liable to the plaintiff for contribution, the defendant must also be liable to the United States under § 107(a). Id. Whether § 113(f) permits contribution among parties who do not have a common derivation of liability constitutes an issue of first impression within this Circuit. The Court finds the analysis set forth in In re Reading Co. to be persuasive, see id. at 1123-24, and accordingly adopts the Third Circuit’s holding that a plaintiff may only bring a CERCLA § 113(f) contribution claim against" }, { "docid": "8880662", "title": "", "text": "treatment for creditors in the same class, 11 U.S.C. § 1123(a)(4) (1988), and that the proposed plan is feasible, 11 U.S.C. § 1129(a)(ll). Once the bankruptcy court completes confirmation of the reorganization plan, “except for the prebankruptcy obligations reaffirmed in the debtor’s reorganization plan, the Chapter 11 debtor is ‘discharged’ from all ‘claims’ that arose before the bankruptcy confirmation.” Kevin J. Saville, Discharging CERCLA Liability in Bankruptcy: When Does a Claim Arise?, 76 Minn. L.Rev. 327, 337 (Dec.1991) (citing 11 U.S.C. § 1141 (1988)). The Code defines “claim” as, inter alia, 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(5)(A). The debtor remains fully liable for all “claims” arising after the bankruptcy confirmation. See Saville, supra, at 337. A creditor who has a “claim” must file a proof of the claim with the bankruptcy court prior to a date fixed by the court to avoid the claim being discharged upon judicial confirmation of the reorganization plan. See 11 U.S.C. §§ 501 and 502. MDL contends that any CERCLA liability was discharged by its bankruptcy “because all the necessary elements of a CERCLA claim existed when the plan was confirmed in 1986 and the United States had actual and constructive knowledge that the claim existed prior to that time.” Mem. In Supp. of Def.’s Mot. For J. On The Pleadings at 3-4 (citing In re Reading Co., 115 F.3d at 1111; Jensen v. California Dept. of Health Servs. (In re Jensen), 127 B.R. 27, 33 ERC 1597 (9th Cir. BAP 1991)). Plaintiffs argue that MDL’s CERCLA liability was not discharged by its 1986 bankruptcy reorganization because Plaintiffs’ claims against MDL were not within the actual or presumed contemplation of the Plaintiffs or the United States. See Mem. In Supp. of Pls.’ Opp. To Def.’s Mot. For J. On The Pleadings at 5 (citing United States v. Union Scrap Iron & Metal, 123 B.R. 831, 836-38 (D.Minn.1990)). Plaintiffs further allege that “full discovery must be completed before facts can determine whether" }, { "docid": "8880663", "title": "", "text": "reorganization plan. See 11 U.S.C. §§ 501 and 502. MDL contends that any CERCLA liability was discharged by its bankruptcy “because all the necessary elements of a CERCLA claim existed when the plan was confirmed in 1986 and the United States had actual and constructive knowledge that the claim existed prior to that time.” Mem. In Supp. of Def.’s Mot. For J. On The Pleadings at 3-4 (citing In re Reading Co., 115 F.3d at 1111; Jensen v. California Dept. of Health Servs. (In re Jensen), 127 B.R. 27, 33 ERC 1597 (9th Cir. BAP 1991)). Plaintiffs argue that MDL’s CERCLA liability was not discharged by its 1986 bankruptcy reorganization because Plaintiffs’ claims against MDL were not within the actual or presumed contemplation of the Plaintiffs or the United States. See Mem. In Supp. of Pls.’ Opp. To Def.’s Mot. For J. On The Pleadings at 5 (citing United States v. Union Scrap Iron & Metal, 123 B.R. 831, 836-38 (D.Minn.1990)). Plaintiffs further allege that “full discovery must be completed before facts can determine whether the order which defendant invokes is applicable ... and whether the order does or does not shield defendant from plaintiffs’ CERCLA claims.” Id. at 6. MDL responds by claiming that In re Reading Co., rather than Union Scrap, is dispositive with regard to when Plaintiffs’ claims arose and when those claims were discharged. See Reply Of Def. In Supp. Of Mot. For J. On The Pleadings at 2 (citing In re Jensen, 127 B.R. 27; California Dept. of Health Services v. Jensen, 995 F.2d 925, 36 ERC 1954 (9th Cir.1993) (“Jensen”)). This question of when a party’s contingent CERCLA liability may be discharged through bankruptcy constitutes an issue of first impression within this Circuit. Courts in other Circuits have split on this issue, adopting different standards for determining when contingent CERCLA claims “arise” for the purpose of bankruptcy discharge. Before adopting an approach, the Court will briefly outline the varying approaches other courts have taken. a. Right to Payment Approach At one end of the jurisprudential spectrum, some courts have held that a claim does" }, { "docid": "8880665", "title": "", "text": "not arise until all four CERCLA elements exist. See In re Reading Co., 115 F.3d at 1125; Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 941-44 (3d Cir.), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); In re Frenville Co., 744 F.2d 332 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985); Union Scrap, 123 B.R. at 835; In re Federal Press Co., 117 B.R. 942, 947 (Bankr.N.D.Ind.1989). Under this approach, known as the “right to payment” approach, a debtor’s CERCLA liability will be discharged only if all four CERCLA elements exist prior to bankruptcy. This approach therefore focuses on substantive, non-bankruptcy law to determine when a claim arises. The right to payment approach has been criticized for failing to address bankruptcy law and policy. One of the chief goals of bankruptcy is providing “a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (citation omitted). The right to payment standard undermines the fresh start policy because the debtor cannot receive a fresh start from its CERCLA liabilities stemming from pre-bankruptcy conduct if any of the four ele ments (some of which are not in the debtor’s control) have not been met. See In re Jensen, 127 B.R. at 31 (citation omitted); see also Reynolds Bros., Inc. v. Texaco, Inc., 420 Mass. 115, 647 N.E.2d 1205, 1209 (1995); Saville, supra, at 348. Moreover, as set forth above, the Bankruptcy Code defines “claim” more broadly than the traditional cause of action, encompassing any right to payment, no matter how distant or contingent. 11 U.S.C. § 1011(5)(A). Therefore, critics of the right to payment approach argue, non-bankruptcy law such as CERCLA should not control when a bankruptcy claim arises. See Jensen, 995 F.2d at 929-30 (“To hold that a claim for contribution arises only when there is an enforceable" }, { "docid": "22477944", "title": "", "text": "reduced to judgment, liquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured. 11 U.S.C. 101(4)(A). Furthermore, the Code requires estimation of all contingent or unliquidated claims which “unduly delay the administration of the case. ” 11 U.S.C. 502(c)(1). The legislative history of the Code reflects Congress’ intent that the term “claim” be given broad interpretation so that “all legal obligations of the debtor, no matter how remote or contingent will be able to be dealt with in the bankruptcy case.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 309, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6266. The courts accordingly have given a broad and expansive reading to the term “claim”. See Ohio v. Kovacs, 469 U.S. 274, 279, 105 S.Ct. 705, 707, 83 L.Ed.2d 649 (1985). Determination of whether a claim arises in bankruptcy requires an analysis of interests created by non-bankruptcy substantive law. See In re Remington Rand Corp., 836 F.2d 825, 830 (3d Cir.1988); Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 941 (3d Cir.), cert. denied 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985). A claim exists only if before filing of the bankruptcy petition, the relationship between the debtor and the creditor con-tamed all the elements necessary to give rise to a legal obligation — “a right to payment” — under the relevant non-bankruptcy law. See United States v. Union Scrap Iron & Metal, 123 B.R. 831, 835 (D.Minn.1990); In re UNR Industries, Inc., 29 B.R. 741, 745-46 n. 4 (N.D.Ill.1983). Bankruptcy does not provide a forum for the creation of new rights, but “serves only as a forum for the recognition of rights already acquired.” In re Credit Industrial Corp., 366 F.2d 402, 407 (2d Cir.1966). However, the creditor need not have a cause of action that is ripe for suit outside of bankruptcy in order for it to have a pre-petition claim for purposes of the Code. See In re Remington Rand Corp., 836 F.2d 825, 826-27 (3d Cir.1988) . The Code encompasses within the term “claim” all “contingent” “unliquidated” and “unmatured” rights to payment. See 11 U.S.C. §" }, { "docid": "8880658", "title": "", "text": "very liberal in favor of the party opposing the motion. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). Even if the plaintiffs chances of success are remote or unlikely, a motion to dismiss should be denied. Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. In reviewing the complaint, the court must accept as true all factual allegations in the complaint and construe them in the light most favorable to the plaintiff. Scheuer, 416 U.S. at 236, 94 S.Ct. 1683; Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984). Legal conclusions or unwarranted factual inferences, however, should not be accepted as true. Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 405-06 (6th Cir.1998). B. Determining the Proper Legal Standard for Discharging CERC-LA Liability Through Bankruptcy 1. CERCLA § 113 Contribution Liability Depends On MDL’s Liability to the United States MDL contends that any CERCLA § 113(f) liability it may have had to Plaintiffs was discharged by MDL’s bankruptcy, which became final in 1986. Although this action was filed in 1998, MDL claims that Plaintiffs’ claims were discharged because “Mason and Dixon’s liability to Plaintiffs depends on whether Mason and Dixon is potentially liable to the United States,” and Mason and Dixon’s potential liability to the United States itself was discharged by MDL’s bankruptcy. Mem. In Supp. of Def.’s Mot. For J. On The Pleadings at 3-4 (Doc. # 218-1, Case # 98-CV-02777). In response, Plaintiffs argue that their claims are not solely derivative of the United States’ claims but are independent statutory claims “which clearly arose after defendant’s bankruptcy in the mid-1980s.” Mem. In Support of Pls.’ Opp. To Def.’s Mot. For J. On The Pleadings at 4 (Doc. # 227-1, Case # 98-cv-02777). MDL counters by stating that Plaintiffs can only sue for contribution under § 113 of CERCLA. As a result, according to In re Reading Co., 115 F.3d 1111, 44 ERC 1865 (3rd Cir.1997), Plaintiffs’ claims must be derivative of those of the United States. Reply Of Def. In Supp. Of Mot. For" }, { "docid": "22477945", "title": "", "text": "106 S.Ct. 183, 88 L.Ed.2d 152 (1985). A claim exists only if before filing of the bankruptcy petition, the relationship between the debtor and the creditor con-tamed all the elements necessary to give rise to a legal obligation — “a right to payment” — under the relevant non-bankruptcy law. See United States v. Union Scrap Iron & Metal, 123 B.R. 831, 835 (D.Minn.1990); In re UNR Industries, Inc., 29 B.R. 741, 745-46 n. 4 (N.D.Ill.1983). Bankruptcy does not provide a forum for the creation of new rights, but “serves only as a forum for the recognition of rights already acquired.” In re Credit Industrial Corp., 366 F.2d 402, 407 (2d Cir.1966). However, the creditor need not have a cause of action that is ripe for suit outside of bankruptcy in order for it to have a pre-petition claim for purposes of the Code. See In re Remington Rand Corp., 836 F.2d 825, 826-27 (3d Cir.1988) . The Code encompasses within the term “claim” all “contingent” “unliquidated” and “unmatured” rights to payment. See 11 U.S.C. § 101(4). The Code’s power to estimate contingent claims similarly extends to otherwise unripe causes of action. See In re Combustion, 838 F.2d at 40. While non-bankruptcy law governs the existence of a claim under the Code, it is not dispositive of the time at which a claim arises under the Code. It is immaterial for the purpose of bankruptcy, whether EPA’s claims against the Debtors are ripe for adjudication under CERCLA, as long as all the elements that can give rise to liability under CERCLA have occurred pre-petition. In reading together the statutory frameworks of CERCLA and the Code, the landmark case of In re Chateaugay Corp., 944 F.2d 997 (2d Cir.1991), used the bankruptcy concept of contingent claims to bring future CERCLA response and dam age costs within the ambit of present discharge proceedings under the Code. The relationship between environmental regulating agencies and those subject to regulation provides sufficient “contemplation” of contingencies to bring most ultimately maturing payment obligations based on pre-petition conduct within the definition of “claims”. Id. at 1005 (emphasis added)." }, { "docid": "13469048", "title": "", "text": "fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. 11 U.S.C.A. § 101(5). Conflict and confusion are almost inevitable. See In re Chicago, M., St. P. & P.R.R., 974 F.2d 775, 777 (7th Cir.1992). For instance, [i]f a problem exists but has not been found or if a cleanup occurs at an identified site before liability is determined, can one of the potentially responsible parties (“PRPs”) get a complete discharge in bankruptcy? [And h]ow can a debtor get a fresh start if it is potentially subject to environmental liability, a large portion of which may be contingent ...? The Interface Between Bankruptcy and Environmental Laws, 46 Bus.Law. at 627. Notwithstanding what might be perceived to be diametrically opposed philosophies, the Supreme Court has indicated more than once that, if possible, these two conflicting objectives should be reconciled. Erman v. Lox Equip. Co., 142 B.R. 905, 907 (N.D.Cal.1992) (citing, inter alia, Midlantic Nat’l Bank v. New Jersey Dep’t of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986); Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985)); see also In re Nat’l Gypsum Co., 139 B.R. 397, 404 (N.D.Tex.1992) (“it is not a question of which statute should be accorded primacy over the other, but rather what interaction between the two statutes serves most faithfully the policy objectives embodied in the two separate enactments of Congress”). Courts considering when a claim for environmental response costs arose have employed somewhat varying approaches to the question. See In re Jensen, 127 B.R. at 30-33. Several courts, including the bankruptcy court below, have rejected the argument that a CERCLA claim arises upon the release or threatened release of hazardous waste, holding instead that each element of a CERCLA claim must be established, including the in-currence of response costs, before a dis-chargeable claim arises. United States v. Union Scrap & Metal, 123 B.R. 831, 838 (D.Minn.1990) (citing In re Jensen, 114 B.R. at 706); cf. In re M. Frenville Co., 744 F.2d 332 (3d Cir.1984) (defendant accounting firm in damages action filed by banks had “an unmatured, unliquidated," }, { "docid": "8880664", "title": "", "text": "the order which defendant invokes is applicable ... and whether the order does or does not shield defendant from plaintiffs’ CERCLA claims.” Id. at 6. MDL responds by claiming that In re Reading Co., rather than Union Scrap, is dispositive with regard to when Plaintiffs’ claims arose and when those claims were discharged. See Reply Of Def. In Supp. Of Mot. For J. On The Pleadings at 2 (citing In re Jensen, 127 B.R. 27; California Dept. of Health Services v. Jensen, 995 F.2d 925, 36 ERC 1954 (9th Cir.1993) (“Jensen”)). This question of when a party’s contingent CERCLA liability may be discharged through bankruptcy constitutes an issue of first impression within this Circuit. Courts in other Circuits have split on this issue, adopting different standards for determining when contingent CERCLA claims “arise” for the purpose of bankruptcy discharge. Before adopting an approach, the Court will briefly outline the varying approaches other courts have taken. a. Right to Payment Approach At one end of the jurisprudential spectrum, some courts have held that a claim does not arise until all four CERCLA elements exist. See In re Reading Co., 115 F.3d at 1125; Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 941-44 (3d Cir.), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); In re Frenville Co., 744 F.2d 332 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985); Union Scrap, 123 B.R. at 835; In re Federal Press Co., 117 B.R. 942, 947 (Bankr.N.D.Ind.1989). Under this approach, known as the “right to payment” approach, a debtor’s CERCLA liability will be discharged only if all four CERCLA elements exist prior to bankruptcy. This approach therefore focuses on substantive, non-bankruptcy law to determine when a claim arises. The right to payment approach has been criticized for failing to address bankruptcy law and policy. One of the chief goals of bankruptcy is providing “a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life and a clear field for future effort, unhampered by" }, { "docid": "14776623", "title": "", "text": "in 1978 U.S.Code Cong. & Admin. News 5787, 5963, 6266. See In re Chateaugay Corp., 944 F.2d at 1003. The Chateaugay Court was faced with the issue of whether unincurred CERCLA response costs for pre-petition releases are “claims.” The Court found that these costs are indeed claims, dischargeable in bankruptcy, regardless of when such costs were incurred, as long as such costs concerned pre-petition release or threatened release of hazardous waste. The District Court recognized that “before a contingent claim can be discharged, it must result from pre-petition conduct fairly giving rise to that contingent claim.” Chateaugay, 112 B.R. at 521. The Court of Appeals noted that the District Court “carefully limited its ruling to pre-petition releases or threatened releases of hazardous substances.” Chateaugay, 944 F.2d at 1005. Other decisions involving environmental claims support the conclusion reached by the Second Circuit in Chateaugay. CMC Heartland Partners ¶. Union Pacific Railroad (In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co.), 3 F.3d 200, 207 (7th Cir.1993) (environmental claims discharged even though “Union Pacific may not have had actual knowledge of hazardous waste containers at the railyard”); In re Jensen, 995 F.2d 925, 929 (9th Cir.1993) (“the bankruptcy claim arises at the time of the debtor’s conduct relating to the contamination”), affirming In re Jensen, 127 B.R. 27, 33 (Bankr. 9th Cir.1991) (“a claim arises for purposes of discharge upon the actual or threatened release of hazardous waste by the debtor”); In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 974 F.2d 775, 786 (7th Cir.1992); NCL Corp. v. Lone Star Bldg. Centers (Eastern) Inc., 144 B.R. 170, 180 (S.D.Fla.1992) (dismissing hazardous substance counterclaims based upon pre-petition releases or threatened releases following the reasoning in Chateaugay, supra, that “the Code contemplates discharge of unma-tured or contingent claims which are not asserted”). See also In re National Gypsum Co., 139 B.R. 397, 408 (N.D.Tex.1992) (employing the “fair contemplation” standard; relevant factors include “knowledge by the parties of a site in which a PRP may be liable”). Cf. United States v. Union Scrap & Metal, 123 B.R. 831 (D.Minn.1990); In re M." }, { "docid": "8880660", "title": "", "text": "J. On The Pleadings at 3-4 (Doc. #234-1, Case # 98-cv-02777) (citation omitted). In In re Reading Co., the Third Circuit addressed whether the plaintiffs § 113(f) contribution claim against defendant Reading was discharged by Reading’s bankruptcy. After reviewing traditional concepts of contribution as well as the statutory text of § 113(f), the court held that § 113(f) “does not permit contribution among liable parties who do not have a common derivation of liability.” In re Reading Co., 115 F.3d at 1123. Thus, the court concluded, for the defendant to be liable to the plaintiff for contribution, the defendant must also be liable to the United States under § 107(a). Id. Whether § 113(f) permits contribution among parties who do not have a common derivation of liability constitutes an issue of first impression within this Circuit. The Court finds the analysis set forth in In re Reading Co. to be persuasive, see id. at 1123-24, and accordingly adopts the Third Circuit’s holding that a plaintiff may only bring a CERCLA § 113(f) contribution claim against a defendant when both the plaintiff and the defendant share a common derivation of liability. Therefore, Plaintiffs in the case sub judice may only bring their CERCLA § 113(f) contribution claims against MDL if both Plaintiffs’ and MDL’s liability are derivative of the claims of the United States. 2. When A Contingent CERCLA Claim Arises for the Purpose of Discharging Liability Through Bankruptcy The next question the Court must answer is whether MDL’s potential liability to the United States was discharged by MDL’s 1986 bankruptcy. The Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (codified as amended at 11 U.S.C. §§ 101-1330 (1988)) (hereinafter “Bankruptcy Code”) provides individuals and corporations with a means to obtain relief from their indebtedness. Under Chapter 11 of the Bankruptcy Code, a debtor filing for reorganization proposes a plan for reorganization to the bankruptcy court, 11 U.S.C. § 1121(b) (1988), which the debtor’s creditors must approve. 11 U.S.C. § 1126(a)-(g) (1988). The bankruptcy court then must confirm the reorganization plan after determining that the plan provides equal" }, { "docid": "8880668", "title": "", "text": "(Bankr.S.D.N.Y.1986) (“Adherence to [this approach] would reinstitute the provability concept of claims, which the drafters of the Code specifically intended to abolish”); Saville, supra, at 345. Finally, by giving the creditor so much control over the accrual of its claim, the right to payment standard might encourage nefarious creditors to delay cleaning up sites-and thereby incurring response costs-until the close of bankruptcy proceedings. See In re Jensen, 127 B.R. at 31; Reynolds Bros., 647 N.E.2d at 1209. By encouraging such stall tactics, the right to payment approach “not only frustrate[s] the bankruptcy court’s interest in having all claims before it and the debtor’s interest in a fresh start, but it [also frustrates] CERCLA’s interest in a speedy cleanup of hazardous sites.” In re Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 974 F.2d 775, 786 (7th Cir.1992). b. Underlying Act Approach At the other end of the spectrum, some courts have maintained that a pre-bankruptcy “claim” subject to the Code’s discharge provisions exists so long as the underlying polluting act occurred prior to the debtor’s bankruptcy. See In re Jensen, 127 B.R. at 32-33; see also Burlington N.R.R. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 709 (9th Cir.1988); Grady v. A.H. Robins Co., 839 F.2d 198, 203 (4th Cir.), cert. dismissed sub nom. Joynes v. A.H. Robins Co., 487 U.S. 1260, 109 S.Ct. 201, 101 L.Ed.2d 972 (1988); Lovett v. Honeywell, Inc. (In re Transportation Sys. Int’l, Inc.), 110 B.R. 888, 894 (D.Minn.1990), aff’d, 930 F.2d 625 (8th Cir.1991); Danzig Claimants v. Grynberg (In re Grynberg), 113 B.R. 709, 712 (Bankr.D.Colo.1990); In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986) (applying the standard in the asbestos liability context). Thus, under this “underlying act” or “debt- or’s conduct” approach, even if the EPA does not yet know of a potential CERCLA claim against the debtor, the debtor’s liability is discharged so long as the debtor’s conduct relating to the contamination concluded prior to its bankruptcy petition. Rather than looking to substantive non-bankruptcy law to determine when a CERCLA claim arises, these courts emphasize substantive" }, { "docid": "8880678", "title": "", "text": "This “fair contemplation” or “foreseeability” standard posits that a contingent CERCLA claim arises pre-petition only if it is “based upon pre-petition conduct that can fairly be contemplated by the parties at the time of the debtors’ bankruptcy.” Jensen, 995 F.2d at 930 (quoting In re Nat’l Gypsum Co., 139 B.R. 397, 404 (N.D.Tex.1992)). Thus, a claim accrues when the potential CERCLA claimant, at the time of bankruptcy, “could have ascertained through the exercise of reasonable diligence that it had a claim” against the debtor for a hazardous release. In re Crystal Oil Co., 158 F.3d 291, 296 (5th Cir.1998); see also AM Int’l, Inc. v. Datacard Corp., DBS, Inc., 106 F.3d 1342, 1347-48 (7th Cir.1997); In re Chicago, 974 F.2d at 786 (holding, for discharge purposes, that a CERCLA claim arises when the claimant can “tie the bankruptcy debtor to a known release of a hazardous substance which this potential claimant knows will lead to CERCLA response costs.”); NCL Corp. v. Lone Star Bldg. Ctrs., Inc., 144 B.R. 170 (S.D.Fla.1992); Sylvester Bros. Dev. Co. v. Burlington Northern R.R., 133 B.R. 648, 653 (D.Minn.1991) (in which the Union Scrap judge applied a fair contemplation standard instead of its prior right to payment approach); Reynolds Bros., 647 N.E.2d at 1208; Saville, supra, at 354 (proposing that courts should discharge CERCLA liability only when such liability was foreseeable at the conclusion of the debtor’s bankruptcy proceedings). This standard allows a claim to accrue earlier than the right to payment standard because the potential claimant need not incur response costs (the fourth CERCLA element) for a contingent claim to arise under this standard. At the same time, the standard requires more awareness of a potential CERCLA claim by a potential creditor than do the underlying act or debtor-creditor relationship standards, both of which allow claims to accrue even if the potential creditor had no idea that it might have a CERCLA claim against the debtor. In so doing, this standard attempts to reconcile the goals of both the bankruptcy courts and CERCLA. See In re Chicago, 974 F.2d at 787 (“In fact, any other" }, { "docid": "8880679", "title": "", "text": "Burlington Northern R.R., 133 B.R. 648, 653 (D.Minn.1991) (in which the Union Scrap judge applied a fair contemplation standard instead of its prior right to payment approach); Reynolds Bros., 647 N.E.2d at 1208; Saville, supra, at 354 (proposing that courts should discharge CERCLA liability only when such liability was foreseeable at the conclusion of the debtor’s bankruptcy proceedings). This standard allows a claim to accrue earlier than the right to payment standard because the potential claimant need not incur response costs (the fourth CERCLA element) for a contingent claim to arise under this standard. At the same time, the standard requires more awareness of a potential CERCLA claim by a potential creditor than do the underlying act or debtor-creditor relationship standards, both of which allow claims to accrue even if the potential creditor had no idea that it might have a CERCLA claim against the debtor. In so doing, this standard attempts to reconcile the goals of both the bankruptcy courts and CERCLA. See In re Chicago, 974 F.2d at 787 (“In fact, any other conclusion would frustrate the bankruptcy court’s interest in having all claims before it, and any other conclusion would frustrate CERCLA’s goal of providing a speedy cleanup of hazardous sites.”); see also Jensen, 995 F.2d at 930 (stating that the fair contemplation standard carefully balances the sometimes competing goals of environmental law and the bankruptcy code). Courts and commentators have offered little criticism for the fair contemplation approach. In fact, the only direct criticism of this approach argues that the approach, which is rooted in a contractual standard, is inapposite to the CERCLA claim context due to the regulatory, involuntary relationship between the EPA and the debtor. See Philippe J. Kahn, Bankruptcy Versus Environmental Protection: Discharging Future CERCLA Liability In Chapter 11, 14 Cardozo L.Rev.1999, 2029-30 (May 1993) (“To characterize the EPA’s relationship with the debtor as akin to a contractual relationship ignores the absence of a voluntary relationship, a bargained-for obligation .... ”). Indeed, the approach does not appear to fit perfectly with situations such as the instant case, when the debtor’s potential liability cannot" }, { "docid": "13469049", "title": "", "text": "274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985)); see also In re Nat’l Gypsum Co., 139 B.R. 397, 404 (N.D.Tex.1992) (“it is not a question of which statute should be accorded primacy over the other, but rather what interaction between the two statutes serves most faithfully the policy objectives embodied in the two separate enactments of Congress”). Courts considering when a claim for environmental response costs arose have employed somewhat varying approaches to the question. See In re Jensen, 127 B.R. at 30-33. Several courts, including the bankruptcy court below, have rejected the argument that a CERCLA claim arises upon the release or threatened release of hazardous waste, holding instead that each element of a CERCLA claim must be established, including the in-currence of response costs, before a dis-chargeable claim arises. United States v. Union Scrap & Metal, 123 B.R. 831, 838 (D.Minn.1990) (citing In re Jensen, 114 B.R. at 706); cf. In re M. Frenville Co., 744 F.2d 332 (3d Cir.1984) (defendant accounting firm in damages action filed by banks had “an unmatured, unliquidated, disputed claim” against debtor for indemnity and contribution when banks filed their action), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985). The BAP rejected this analysis as inconsistent with the broad statutory definition of a “claim” and with “the overriding goal of the Bankruptcy Code to provide a ‘fresh start’ for the debtor.” In re Jensen, 127 B.R. at 31 (quoting Grogan v. Gamer, 498 U.S. 279, 286-87, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991)). Indeed, neither Union Scrap nor Frenville has had a substantial impact. The Minnesota district court, in an opinion subsequent to Union Scrap, disregarded the “response costs” rule and focused instead on when the party asserting the CERCLA claim had notice of the claim: When the debtor has not disclosed its potential [CERCLA] liabilities in long-since closed bankruptcy proceedings, and the governmental agency has not had actual knowledge of the potential claim in sufficient time to file a claim in those proceed ings, the potential [CERCLA] claim is not discharged. Sylvester Bros. Dev. Co. v. Burlington" }, { "docid": "8017439", "title": "", "text": "Inc., 185 F.3d 978, 985 (9th Cir.1999); Casini v. Graustein (In re Casini), 307 B.R. 800, 811 (Bankr.D.N.J.2004); In re Am. Telecom Corp., 304 B.R. 867, 871 (Bankr.N.D.Ill.2004). Therefore, to determine whether the Schwartz claims have been discharged in Old Conseco’s bankruptcy, the court must examine each of the underlying causes of action asserted by the Schwartz plaintiffs against the insurance subsidiaries. B. Varying Standards for Contingent Claims Based on Post-Discharge Events The Schwartz plaintiffs’ claims are based primarily on the increase in the cost of insurance charge that took effect after confirmation of Conseco’s plan. Determining whether the discharge applies to claims based on conduct that occurs or knowledge that is gained after discharge is often difficult. Courts wrestling with these issues have taken different approaches depending on the type of claim involved and the particular facts of each case. With respect to ordinary torts in which the victim has no previous contact with the tortfeasor, courts have generally concluded that no claim exists for purposes of the Bankruptcy Code until the injury occurs. E.g., Fogel v. Zell, 221 F.3d 955, 960 (7th Cir.2000); In re Chateaugay Corp., 944 F.2d 997, 1004-05 (2d Cir.1991); Schweitzer v. Consol. Rail Corp., 758 F.2d 936, 943 (3d Cir.1985). But see Epstein v. Official Comm, of Unsecured Creditors (In re Piper Aircraft, Corp.), 58 F.3d 1573, 1576-77 (11th Cir.1995) (product liability claims may exist without injury to claimant based on pre-petition relationship and prepetition conduct of debtor). When dealing with claims for damages under statutes such as the federal environmental statutes, courts generally look at whether the claimant could have fairly contemplated a claim based on pre-discharge conditions or conduct. See In re Jensen, 995 F.2d at 930; see also AM Int’l, Inc. v. Datacard Corp., 106 F.3d 1342, 1348 (7th Cir.1997) (CERC-LA claim not discharged where company had no knowledge of environmental contamination prior to its bankruptcy); In re Chi., Milwaukee, St. Paul & Pac. R.R. Co., 974 F.2d at 787 (CERCLA claim discharged when claimant knew it would incur response costs before discharge order became effective); In re Chateaugay Corp., 944" } ]

[ { "docid": "22750029", "title": "", "text": "cause to be adul terated. Also, such relief was not specifically granted by the Act, which did provide another type of relief in the form of a consolidation of multiple libel actions in a convenient venue. 339 U. S., at 602. The drug manufacturer in Ewing was quite obviously seeking an unheard-of form of relief which, if allowed, would have permitted interference in the early stages of an administrative determination as to specific facts, and would have prevented the regular operation of the seizure procedures established by the Act. That the Court refused to permit such an action is hardly authority for cutting off the well-established jurisdiction of the federal courts to hear, in appropriate cases, suits under the Declaratory Judgment Act and the Administrative Procedure Act challenging final agency action of the kind present here. We conclude that nothing in the Food, Drug, and Cosmetic Act itself precludes this action. h — ( 1 — 1 A further inquiry must, however, be made. The injunc-tive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy “ripe” for judicial resolution. Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. As to the former factor, we believe the issues presented are appropriate for judicial resolution at this time. First, all parties agree that the issue tendered is a purely legal one: whether the statute was properly construed by the Commissioner to require the established name of the drug to be used every time the proprietary" } ]

[ { "docid": "23632926", "title": "", "text": "to decline jurisdiction will be given closer scrutiny than normally given on an “abuse of discretion” review. We recognize that other courts have applied the “mere error” standard of review in this context, but the law of this court is to the contrary. IV. THE EXERCISE OF JURISDICTION UNDER THE DECLARATORY JUDGMENT ACT The exercise of this discretion must be reviewed within the framework provided by the Supreme Court in the Abbott Laboratories trilogy: Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (Abbott I); Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) (Abbott II); Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967) (Abbott III). These cases involved pre-enforcement challenges to regulations promulgated under the Food, Drug and Cosmetic Act, 21 U.S.C. Section 301 et seq., seeking declaratory and injunctive relief. The Court determined that there was jurisdiction in the federal courts under the Declaratory Judgment Act and the Administrative Procedure Act to decide cases challenging the type of agency action involved there. The Court went on to state: A further inquiry must, however, be made. The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy “ripe” for judicial resolution. Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Abbott I, 387 U.S. at 148-49, 87 S.Ct. at 1515 (footnote omitted). The court below considered the Abbott trilogy not to be directly applicable" }, { "docid": "9465531", "title": "", "text": "The constitutional doctrine of ripeness is succinctly delineated in Abbott Labs. v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967): [The] basic rationale [of the ripeness doctrine] is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Id., 387 U.S. at 148-49, 87 S.Ct. at 1515-16. The Supreme Court thus requires application of a two-part test to determine whether a case is ripe for judicial action: First, whether the issues are fit for judicial decision—that is, whether there is a present ease or controversy between the parties, see Lake Carriers’Ass’n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972); BP Chems. Ltd. v. Union Carbide Corp., 4 F.3d 975, 977, 28 USPQ2d 1124, 1126 (Fed.Cir.1993); and second, whether there is sufficient risk of suffering immediate hard ship to warrant prompt adjudication—that is, whether withholding judicial decision would work undue hardship on the parties, MacMullan, 406 U.S. at 506, 92 S.Ct. at 1755; Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 200-01, 103 S.Ct. 1713, 1720-21, 75 L.Ed.2d 752 (1983) (quoting Abbott Labs., 387 U.S. at 149, 87 S.Ct. at 1515-16). Both prongs must be satisfied before an Article III court may apply its adjudicative powers to a case’s merits. See Western Oil & Gas Ass’n v. Sonoma County, 905 F.2d 1287, 1291 (9th Cir.1990) (Ninth Circuit inquires whether “the controversy generated is essentially legal in nature or whether further factual amplification is necessary [and] ... assesses] potential hardship to the parties if review is denied”), cert. denied sub nom. Western States Petroleum Ass’n v. Sonoma County, 498 U.S. 1067, 111 S.Ct. 784, 112 L.Ed.2d 846 (1991)." }, { "docid": "12421652", "title": "", "text": "dismiss, holding that the case was not ripe for adjudication. Plaintiffs appeal from that dismissal. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. DISCUSSION Plaintiffs raise three issues on appeal. First, they contend that their APA challenges to the adoption of the MOA are ripe. Second, they argue that the MOA, in fact, violated the APA. Finally, they maintain that the EPA and the Corps failed to follow certain procedures required by NEPA in adopting the MOA. I. Ripeness of Plaintiffs’ APA Claims The first issue we address is the ripeness of plaintiffs’ APA claims. Ripe ness for federal adjudication being a question of law, we review the district court’s decision de novo. See Southern Pac. Transp. Co. v. Los Angeles, 922 F.2d 498, 502 (9th Cir.1990) (citing Hoehne v. San Benito, 870 F.2d 529, 531 (9th Cir.1989)), cert. denied, — U.S.-, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991). The Supreme Court has indicated that ripeness is to be determined by the application of a two prong test. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). In Abbott, the Court held that we must “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id.; see also Assiniboine & Sioux Tribes v. Board of Oil & Gas Conservation, 792 F.2d 782, 788 (9th Cir.1986). “[Rjipeness will prevent review if the systemic interest in postponing adjudication due to lack of fitness outweighs the hardship on the parties created by postponement.” Chavez v. Director, OWCP, 961 F.2d 1409, 1414 (9th Cir.1992) (citations omitted). A. Fitness for Review We will determine first the fitness for judicial review of plaintiffs' claim that the EPA and the Corps violated the notice and comment requirement of the APA. See 5 U.S.C. § 553 (1988). Generally, agency action is fit for review if the issues presented are purely legal and the regulation at issue is a final agency action. Abbott, 387 U.S. at 149, 87 S.Ct. at 1516; see also Assiniboine & Sioux" }, { "docid": "9465529", "title": "", "text": "against Commissioner to obtain patent). We conclude that 42 U.S.C. § 5908 is “an Act of Congress relating to patents,” and therefore that Cedars’ complaint conferred statutory jurisdiction upon the district court based in part on section 1338. This court thus has statutory jurisdiction to review the district court’s decision. See Wyden, 807 F.2d at 941—42, 231 USPQ at 924-25 (Mar-key, C.J., dissenting) (predicting that court’s holding in banc that it had jurisdiction over administrative matter in PTO would require taking jurisdiction over action under 42 U.S.C. § 5908); cf. Alco Standard Corp. v. Tennessee Valley Auth., 808 F.2d 1490, 1 USPQ2d 1337 (Fed.Cir.1986) (suit under 16 U.S.C. § 831r against the Tennessee Valley Authority for reasonable compensation for patent infringement is based on section 1338(a) jurisdiction), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). The government’s motion to dismiss the appeal is denied. Ill When reviewing a district court’s conclusion that the causes of action in a case are not ripe for adjudication, and therefore are beyond the Article III jurisdiction of the federal courts, this court applies the law of the regional circuit in which the district court sits. Molins PLC v. Quigg, 837 F.2d 1064, 1066, 5 USPQ2d 1526, 1527 (Fed.Cir.), cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988); cf. Minnesota Mining & Mfg. Co. v. Norton Co., 929 F.2d 670, 672 & n. 3, 18 USPQ2d 1302, 1304 & n. 3 (Fed.Cir.1991) (Federal Circuit law governs review of decision to dismiss infringement suit based solely on existence of pending interference when justiciability of controversy is not in question). The United States Court of Appeals for the Ninth Circuit reviews de novo a dismissal under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989). However, in the context of a ripeness determination, “[t]he district court’s factual findings on jurisdictional issues must be accepted unless clearly erroneous.” Winter v. California Medical Review, Inc., 900 F.2d 1322, 1325 (9th Cir.1989); see also Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989). IV" }, { "docid": "2112649", "title": "", "text": "provisions before us are ripe for review. The doctrines of standing and ripeness are closely related, in that the application of either is intended to “prevent courts from becoming enmeshed in abstract questions which have not concretely affected the parties.” Pence v. Andrus, 586 F.2d 733, 737 (9th Cir. 1978). Like standing, the ripeness doctrine is based in part upon the article III requirement that courts decide only cases or controversies. Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 355, 42 L.Ed.2d 320 (1974). The exercise of judicial restraint, however, is an added ingredient of the ripeness doctrine by which courts can decline to decide issues which are not yet fit for adjudication. Id. Thus, while both doctrines require us to ask whether the plaintiff has suffered harm, ripeness requires an additional inquiry into “whether the harm asserted has matured sufficiently to warrant judicial intervention.” Warth v. Seldin, 422 U.S. 490, 499 n.10, 95 S.Ct. 2197, 2205 n.10, 45 L.Ed.2d 343 (1975). In deciding whether an issue is ripe for review, we “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967); see Western Oil & Gas Association v. United States Environmental Protection Agency, 633 F.2d 803, 807 (9th Cir. 1980); Pence, 586 F.2d at 737. A challenge to a statute or regulation that has not yet been applied is generally considered fit for judicial determination if the issue raised is a “purely legal one,” Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515, or one which “further factual development will not render more concrete.” Western Oil & Gas, 633 F.2d at 808; see Gardner v. Toilet Goods Association, 387 U.S. 167, 171, 87 S.Ct. 1526, 1528, 18 L.Ed.2d 704 (1967). On the other hand, if the issue would be illuminated by the development of a better factual record, the challenged statute or regulation is generally not considered fit for adjudication until it has actually been applied. Regional Rail" }, { "docid": "23108921", "title": "", "text": "decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Lab. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Principles of federalism lend this doctrine additional force when a federal court is reviewing a state agency decision at an interim stage in an evolving process. See 13A Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3532.1 n. 16 & accompanying text (2d ed. 1984 & Supp.1998). The D.C. Circuit, which decides most petitions for review of federal agency actions, explained: The primary focus of the ripeness doctrine as applied to judicial review of agency action has been a prudential attempt to time review in a way that balances the petitioner’s interest in prompt consideration of allegedly unlawful agency action against the agency’s interest in crystallizing its policy before that policy is subjected to judicial review and the court’s interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting. Mississippi Valley Gas Co. v. Federal Energy Regulatory Comm’n (MVGC), 68 F.3d 503, 508 (D.C.Cir.1995) (quoting Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985)) (internal quotation marks omitted). “In considering whether a case is ripe for review, a court must evaluate ‘[1] the fitness of the issues for judicial decision and [2] the hardship to the parties of withholding court consideration.’ ” Winter v. California Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir.1990) (quoting Abbott, 387 U.S. at 149, 87 S.Ct. 1507). “A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.” Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 627 (9th Cir.1989). “To meet the hardship requirement, a litigant must show that withholding review would result in direct and immediate hardship and would entail more than possible financial loss.” Winter, 900 F.2d at 1325 (internal quotation marks omitted). a. Fitness of Issues for Judicial Decision We conclude that U.S. West’s challenge to the interim rates is not yet fit for judicial decision. First, we cannot determine" }, { "docid": "4408483", "title": "", "text": "felt in a concrete way by the challenging parties. Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. at 1515. The Court also explained that the ripeness requirement involves a two-part test: “The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. at 1515. “In order to be ripe for review, a dispute must satisfy both prongs of the ripeness test.” Franklin Federal Savings Bank v. Director, Office of Thrift Supervision, 927 F.2d 1332, 1336 (6th Cir.1991). Thus, we must first determine whether HUD’s application of its regulation under a disparate impact analysis is fit for judicial decision. The Supreme Court set forth several factors to consider when analyzing whether issues are appropriate for judicial resolution in Abbott Laboratories. In this regard, the Court considered whether the regulations at issue constituted “final agency action.” Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1516. The Court explained that the “cases dealing with judicial review of administrative actions have interpreted the ‘finality’ requirement in a pragmatic way.” Id. Furthermore, we have explained: As a general rule, final agency action includes “interpretive decisions that crystalize or modify private legal rights.” Federal Trade Commission v. Standard Oil of California, 449 U.S. 232, 247, 101 S.Ct. 488, 497, 66 L.Ed.2d 416 (1980) (Stevens, J., concurring). The D.C. Circuit has explained the purpose of the finality requirement as being to determine “if the agency’s position is merely tentative or, on the other hand, whether the agency views its deliberative process as sufficiently final to demand compliance with its announced position.” Ciba-Geigy Corp. v. U.S. Environmental Protection Agency, 801 F.2d 430, 436 (D.C.Cir.1986). While an agency may generally express tentative views without judicial review, “[ojnce the agency publicly articulates an unequivocal position, however, and expects regulated entities to alter their primary conduct to conform to that position, the agency has voluntarily relinquished the benefit of proposed judicial review.” Ibid. Franklin Federal, 927 F.2d at 1337. In this case, the district" }, { "docid": "822377", "title": "", "text": "constitutional challenges or challenges to INS regulations. See C. Gordon & H. Rosenfield, 1 Immigration Law and Procedure § 1.10e at 1-77 (1980). See also Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 1419, 3 L.Ed.2d 1377 (1959). For these reasons, causes of action 1-3, as well as causes of action 4-16, come within clear exceptions to the doctrine of exhaustion of administrative remedies. In addition, even if the exhaustion doctrine might otherwise be applicable, the balancing approach outlined by the Fifth Circuit in Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 865-66 (1975) would make a dismissal on that basis unwise. b. Ripeness In their renewed motion to dismiss, the defendants did not renew their earlier contention that the issues in this case were not “ripe” for adjudication. Again, the implicit abandonment of this contention arises from good cause. The claim that this litigation is not ripe for adjudication is patently frivolous. The Supreme Court has outlined a two step process for determining whether a particular case is ripe for adjudication: “The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). However, the Court did not intend that every federal court had to apply this two step procedure in every case; before a court is obligated to explore “the intricacies of the ripeness doctrine,” id. at 148, 87 S.Ct. at 1515, the party suggesting unripeness ought to be able to articulate why the case may be unripe. To test whether the party suggesting unripeness has articulated a proper reason to arouse judicial concern that the litigation may be unripe, a court need look no further than the late Justice Harlan’s summary of the ripeness doctrine: [I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until" }, { "docid": "10903557", "title": "", "text": "administrative record. Id. at 305. Nothing before the court in this case indicates that any action is necessary to assure preservation of an adequate record. Normal agency procedures should be adequate here to preserve an adequate record of the agency proceedings. In fact, this court’s opinion on that issue assures the creation of and preservation of such a record. Ripeness As an alternate ground for dismissal, defendant relies upon the doctrine of ripeness. The court discerns little difference between this doctrine and that of exhaustion. Much of the same analysis and many of the same conclusions are applicable. A motion to dismiss may be granted when a party seeks to challenge agency action that is found to present a controversy that is not ripe for judicial review. Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The ripeness doctrine is summarized in Abbott Laboratories v. Gardner, 387 U.S. 136, 148-9, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of prema ture adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration, (footnote omitted). The claims raised regarding the missing files are not fit for judicial review at this time. They are not purely legal issues. See Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515. Plaintiffs acknowledge that significant factual development is necessary before the legal issues can be reached, but argue that this court is the proper forum to determine the facts. Factual development is more appropriate in the agency proceedings, and plaintiffs have not demonstrated any reason to doubt the adequacy of the agency" }, { "docid": "19066264", "title": "", "text": "C.F.R. § 125.2(b). Appellants alleged in their complaint that the Administrator exceeded his authority in promulgating the regulations, that they were unsupported by substantial evidence or adequate findings and were vague and ambiguous. To establish their factual allegations, appellants moved in the District Court for an order requiring the EPA to certify and file with the court the administrative record compiled in adopting the regulations. The court denied appellants’ motion and granted the Administrator’s motion to dismiss. The court ruled that the matter would not be ripe until the regulations were applied in a permit proceeding. We are in agreement with that ruling and accordingly affirm. The objective underlying the ripeness doctrine is well recognized: the ripeness doctrinéis] . . . basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Abbott Laboratories, supra, 387 U.S. at 148 — 49, 87 S.Ct. at 1515. The methodology for determining whether a controversy is ripe for review is established: “The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories, supra, 387 U.S. at 149, 87 S.Ct. at 1515 (1967); Continental Air Lines, Inc. v. Civil Aeronautics Board, 173 U.S.App.D.C. 1, 18, 522 F.2d 107, 124 (1974) (en banc); New York Stock Exchange, Inc. v. Bloom, 183 U.S.App.D.C. 217, 221, 562 F.2d 736, 740 (1977). Therefore, for a case to be ripe for review, “[w]hat is required is that the interests of the court and agency in postponing review until the question arises in some more concrete and final form, be outweighed by the interest of those who seek relief from the challenged action’s ‘immediate and practical impact’ upon them.” Continental Air Lines, supra, 173 U.S.App.D.C. at 18-19, 522 F.2d at 124-25; New York Stock Exchange, supra, 183 U.S.App.D.C. at" }, { "docid": "12283757", "title": "", "text": "from entangling themselves in abstract disagreement over administrative policies, and also to protect those agencies from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties.” Abbott Lab. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Ripeness reflects the concerns, articulated by the government here, that courts (1) involve themselves only in “problems that are real and present or imminent” and (2) not “intrude excessively on the policymaking domains of the politically accountable Branches” by allowing judicial review “only when the government’s position has crystallized to the point at which a court can identify a relatively discrete dispute.” 2 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 15.12, at 360 (2d ed.1994). Thus, “[a]t its core, the ripeness requirement is based on the jurisdictional limit in Article III.” Id. We have looked to a variety of factors in determining whether a ease is ripe for judicial determination, including (1) whether the issue to be reviewed is more legal or factual in nature, (2) whether the agency action is likely to have an immediate and substantial impact upon the complaining party, (3) whether judicial review would delay or im pede effective enforcement of the relevant administrative scheme, (4) whether the agency’s actions are final, and (5) whether an adequate factual record has been established. See, e.g., Occidental Chem. Corp. v. FERC, 869 F.2d 127, 129 (2d Cir.1989); Seafarers Int’l Union v. United States Coast Guard, 736 F.2d 19, 25-27 (2d Cir.1984); Aquavella v. Richardson, 437 F.2d 397, 403-04 (2d Cir.1971). The Supreme Court has articulated the gravamen of the inquiry to be “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Lab., 387 U.S. at 149, 87 S.Ct. at 1515; see Motor Vehicle Mfrs. Ass’n v. New York State Dep’t of Envtl. Conservation, 79 F.3d 1298, 1305 (2d Cir.1996). We have no difficulty in concluding that this controversy is ripe for judicial consideration. First, because this is a facial challenge" }, { "docid": "809823", "title": "", "text": "Assure Competitive Transportation, Inc. v. United States, 629 F.2d 467, 471 (7th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981). Only in cases concerning agency process do the concerns of judicial economy and expertise which the Court of Appeals found “compelling” in TRAC, 750 F.2d at 78, have significant weight. Accordingly, the district court has subject matter jurisdiction over the constitutional claim advanced in Count II of the complaint. Ripeness. Defendants next contend that plaintiff’s Article III claim is not sufficiently ripe to establish a concrete case or controversy. [The] basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ... The problem is best seen in a twofold aspect, requiring [courts] to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967); Roosevelt Campobello International Park Commission v. U.S.E.P.A., 684 F.2d 1034, 1040 (1st Cir.1982). First Commodity’s constitutional challenge clearly meets the first prong of the ripeness test. Although there is no final agency action to review, the pendency of the reparation actions satisfies the finality aspect of the ripeness doctrine because the case challenges the Commission’s authority to act, and not the merits of any particular action. See Thomas v. Union Carbide Agricultural Products Co., — U.S. -, -, 105 S.Ct. 3325, 3334, 87 L.Ed.2d 409 (1985); cf. Sanchez-Mariani v. Ellingwood, 691 F.2d 592, 596 (1st Cir.1982). The action is not premature. In defending 86 reparations actions, plaintiff has felt the effects of the reparations scheme “in a concrete way”. See id. (quoting Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515) (claim ripe where plaintiff had engaged in lengthy arbitration proceedings pursuant to statutory scheme, the constitutionality of which was in question); cf. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019-20, 104 S.Ct. 2862, 2882, 81 L.Ed.2d 815 (1984) (holding challenge to same scheme unripe where plaintiff had never been forced to resort" }, { "docid": "6948431", "title": "", "text": "at any time, Duke City Lumber Co., 539 F.2d at 221 n. 2; In re Grand Jury, April, 1979, 604 F.2d 69, 72 (10th Cir.1979). Although at oral argument the parties encouraged us to render a decision in this case, “because issues of ripeness involve, at least in part, the existence of a live ‘Case or Controversy,’ we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the ‘Case and Controversy’ sense. Further, to the extent that questions of ripeness involve the exer cise of judicial restraint from unnecessary decision of constitutional issues, the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties.” Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974) (footnotes omitted). The ripeness doctrine involves both jurisdictional limitations imposed by Article Ill’s requirement of a case of controversy and prudential considerations arising from problems of prematurity and abstractness that may present insurmountable obstacles to the exercise of the court's jurisdiction, even though jurisdiction is technically present. See id.; Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972); C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3532, at 237-38 (1975). The basic rationale is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements____ The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Moreover, “since ripeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of the District Court’s decision that must govern.” Regional Rail Reorganization Act Cases, 419 U.S. at 140, 95 S.Ct. at 357. We are convinced that it is preferable for us to defer a decision on the due process and equal protection issues" }, { "docid": "581729", "title": "", "text": "be measured against the standards for obtaining a stay of an administrative order. A. Subject Matter Jurisdiction. Because CERCLA was enacted only in 1980, and has been implemented even more recently, neither the Supreme Court nor any circuit court of appeals has had occasion to address these issues. However, the reported district court decisions are virtually unanimous in holding that a federal court lacks subject matter jurisdiction to review the merits of a CERCLA order prior to EPA’s seeking to enforce that order. See, e.g., Aminoil, supra, 599 F.Supp. at 71; Lone Pine Steering Committee v. United States Environmental Protection Agency, 600 F.Supp. 1487, 1494 (D.N.J.1985); Earthline Co. v. Kin-Buc, Inc., 21 Env’t Rep.Cas. (BNA) 2161 (D.N.J. July 23, 1984); United States v. Outboard Marine Corp., 104 F.R.D. 405 (N.D.Ill.1984). Cf. J.V. Peters & Co., Inc. v. Ruckelshaus, 584 F.Supp. 1005, 1010 (N.D.Ohio 1984) (no pre-enforcement judicial review unless EPA action had “absolutely no rational basis”). Plaintiffs' first two claims relate to the merits of the EPA order. Therefore, we lack subject matter jurisdiction to consider those claims. The third claim, however, relates not to the merits of the order, but to the constitutionality of the statutory scheme under which it was issued. Thus, CERCLA § 113(b), 42 U.S.C. § 9613(b), provides us with jurisdiction to consider this third claim. Aminoil, 599 F.Supp. at 72. B. Ripeness. In Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), the Court addressed the question of when a controversy is “ripe” for judicial resolution. As the Court noted: The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. 387 U.S. at 149, 87 S.Ct. at 1515. The issue presented by plaintiffs’ third claim is a “purely legal one,” and is thus fit for judicial determination. Id.; Aminoil, 599 F.Supp. at 72. Moreover, plaintiffs are placed in the unenviable position of deciding whether to disobey the EPA order, and thus run the risk of incurring treble punitive" }, { "docid": "14191831", "title": "", "text": "DoL regulations. Although Beverly argues to the contrary, the Court believes that judicial review of the DoL investigation of Beverly may end up being unnecessary if the ALJ rules in favor of Beverly on its administrative appeal. For example, if the ALJ determines that “[t]he penalties and back wages sought by the Administrator are barred, in whole or in part, by the statute of limitations,” see Beverly’s Request for Hearing, at 4 (Mar. 23, 1998) (attached as Exhibit C to Beverly’s Supplemental Memorandum in Opposition to Defendants’ Motion To Dismiss), Beverly will have no reason to seek judicial review of the investigation. Cf. DRG Funding, 76 F.3d at 1215 (concluding that an agency’s decision to collect a debt by offset was not final because if the agency’s “administrative review ends with the conclusion that the corporation has no debt to [the agency], the corporation will have no reason to seek a judicial determination of the proper procedure for collecting one”). Accordingly, the Court dismisses without prejudice Counts II-V for lack of subject matter jurisdiction. II. Whether Beverly’s Claims Are Ripe for Adjudication Defendants next contend that, even if Beverly’s claims implicate “final” agency action, those claims are not ripe for judicial review. [The] basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by. the challenging parties. The problem is best seen in a twofold aspect, requiring [the Court] to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration, Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. 1507. Thus, courts are to strike a balance between the interest in deciding the issue in a more concrete factual setting and the hardship to the parties caused by postponing judicial review. See Friends of Keeseville, Inc. v. FERC, 859 F.2d 230, 235 (D.C.Cir.1988); State Farm, 802 F.2d at 479; Cibar-Geigy, 801 F.2d" }, { "docid": "9465530", "title": "", "text": "jurisdiction of the federal courts, this court applies the law of the regional circuit in which the district court sits. Molins PLC v. Quigg, 837 F.2d 1064, 1066, 5 USPQ2d 1526, 1527 (Fed.Cir.), cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988); cf. Minnesota Mining & Mfg. Co. v. Norton Co., 929 F.2d 670, 672 & n. 3, 18 USPQ2d 1302, 1304 & n. 3 (Fed.Cir.1991) (Federal Circuit law governs review of decision to dismiss infringement suit based solely on existence of pending interference when justiciability of controversy is not in question). The United States Court of Appeals for the Ninth Circuit reviews de novo a dismissal under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989). However, in the context of a ripeness determination, “[t]he district court’s factual findings on jurisdictional issues must be accepted unless clearly erroneous.” Winter v. California Medical Review, Inc., 900 F.2d 1322, 1325 (9th Cir.1989); see also Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989). IV The constitutional doctrine of ripeness is succinctly delineated in Abbott Labs. v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967): [The] basic rationale [of the ripeness doctrine] is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Id., 387 U.S. at 148-49, 87 S.Ct. at 1515-16. The Supreme Court thus requires application of a two-part test to determine whether a case is ripe for judicial action: First, whether the issues are fit for judicial decision—that is, whether there is a present ease or controversy between the parties, see Lake Carriers’Ass’n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972);" }, { "docid": "23108922", "title": "", "text": "68 F.3d 503, 508 (D.C.Cir.1995) (quoting Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985)) (internal quotation marks omitted). “In considering whether a case is ripe for review, a court must evaluate ‘[1] the fitness of the issues for judicial decision and [2] the hardship to the parties of withholding court consideration.’ ” Winter v. California Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir.1990) (quoting Abbott, 387 U.S. at 149, 87 S.Ct. 1507). “A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.” Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 627 (9th Cir.1989). “To meet the hardship requirement, a litigant must show that withholding review would result in direct and immediate hardship and would entail more than possible financial loss.” Winter, 900 F.2d at 1325 (internal quotation marks omitted). a. Fitness of Issues for Judicial Decision We conclude that U.S. West’s challenge to the interim rates is not yet fit for judicial decision. First, we cannot determine whether these rates are final since the Commission may not have reached a final decision on the rates that will be charged during the period between the effective date of the agreements and the establishment of permanent rates. The Commission adopted a two-stage process for fixing interconnection rates: interim rates were to be set by arbitration; permanent rates were to be determined in a generic price proceeding. The generic proceeding is still underway. US West challenges the interim rates, but says its concerns would be resolved if TCG and MFS were ordered to compensate U.S. West for any differences between the interim rates and the permanent prices, referred to as an “administrative true-up.” US West apparently requested a true-up in arbitration proceedings. The arbitrators’ orders cryptically provide that the rates in the agreements “will remain in effect pending the outcome of the Commission’s generic pricing proceeding.” The Commission’s orders approving the arbitrated agreements are similarly ambiguous: “The prices contained in the Agreement are interim prices, subject to replacement by prices adopted in the Commission’s generic" }, { "docid": "3753742", "title": "", "text": "Transportation Union v. Foster, 205 F.3d 851, 857 (5th Cir.2000) (“[E]very federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it.”) (citation omitted); see also Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (“Ripeness is a constitutional prerequisite to the exercise of jurisdiction.”). In New Orleans Public Service, Inc. v. Council of New Orleans, 833 F.2d 583 (5th Cir.1987), we set out the standard for determining whether a dispute is ripe for adjudication in this circuit: A court should dismiss a case for lack of “ripeness” when the case is abstract or hypothetical. The key considerations are “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required. Id. at 586-87 (quoting Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. 1507 (holding that a ripeness determination considers (1) fitness for review, and (2) hardship to parties of withholding judicial consideration)). Many courts have recognized that applying the ripeness doctrine in the declaratory judgment context presents a unique challenge. See, e.g., Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 692 (1st Cir.1994) (“Applying this [Abbott Labs] test in the declaratory judgment context often requires custom tailoring, for there are at least two salient differences between declaratory actions and the mind-run of other cases: first, declaratory relief is more likely to be discretionary; and, second, declaratory actions contemplate an ‘ex ante determination of rights’ that ‘exists in some tension with traditional notions of ripeness’”) (citations omitted). Nonetheless, a declaratory, judgment action, like any other action, must be ripe in order to be justiciable. See United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir.2000) (“Declaratory judgments are typically sought before a completed ‘injury-in-fact’ has occurred ... but still must be limited to the resolution" }, { "docid": "16290790", "title": "", "text": "fact” prong of standing requires an injury that is both “concrete and particularized” and “actual or imminent.” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. at 2136. Similarly, for the controversy to be ripe, the eomplained-of injury must be immediate or imminently threatened. There is an important distinction between the two doctrines, however. When determining standing, a court asks whether these persons are the proper parties to bring the suit, thus focusing on the qualitative sufficiency of the injury and whether the complainant has personally suffered the harm. See Erwin Chemerinsky, Federal Jurisdiction § 2.4.1 (1989). When determining ripeness, a court asks whether this is the correct time for the complainant to bring the action. See id. In the instant case, the timing of the suit, rather than the propriety of appellants as plaintiffs, causes justiciability problems. The ripeness doctrine “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies” as well as “protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Lab. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). A case is not “ ‘ripe’ for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant’s situation in a fashion that harms or threatens to harm him.” Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891, 110 S.Ct. 3177, 3190, 111 L.Ed.2d 695 (1990). In deciding whether an issue is ripe, a court must “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Lab., 387 U.S. at 149, 87 S.Ct. at 1515. Appellants argue that the decisions made in the Plan are couched in language that makes mandatory further site-specific action. Appellees respond that the Plan is not the final arbiter of any on-the-ground actions. They contend that there is another" }, { "docid": "4408482", "title": "", "text": "HUD’s claim that the application of its regulation under a disparate impact approach was not ripe for review. The Supreme Court has outlined the ripeness doctrine in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), and two companion cases, Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) and Gardner v. Toilet Goods Association, Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). In those cases, the Court explained as follows: The injunctive and declarative judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy “ripe” for judicial resolution. Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. at 1515. The Court also explained that the ripeness requirement involves a two-part test: “The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. at 1515. “In order to be ripe for review, a dispute must satisfy both prongs of the ripeness test.” Franklin Federal Savings Bank v. Director, Office of Thrift Supervision, 927 F.2d 1332, 1336 (6th Cir.1991). Thus, we must first determine whether HUD’s application of its regulation under a disparate impact analysis is fit for judicial decision. The Supreme Court set forth several factors to consider when analyzing whether issues are appropriate for judicial resolution in Abbott Laboratories. In this regard, the Court considered whether the regulations at issue constituted “final agency action.” Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1516. The Court explained that the" } ]

[ { "docid": "22721878", "title": "", "text": "is denied. If the impairment is severe, the evaluation proceeds to the third step, which determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity. §§404.1520(d), 416.920(d); 20 CFR pt. 404, subpt. P, App. 1 (1986). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. §§404.1520(e), 416.920(e). If the claimant cannot perform this work, the fifth and final step of the process determines whether he is able to perform other work in the national economy in view of his age, education, and work experience. The claimant is entitled to disability benefits only if he is not able to perform other work. §§ 404.1520(f), 416.920(f). The initial disability determination is made by a state agency acting under the authority and supervision of the Secretary. 42 U. S. C. §§ 421(a), 1383b(a); 20 CFR §§404.1503, 416.903 (1986). If the state agency denies the disability claim, the claimant may pursue a three-stage administrative review process. First, the determination is reconsidered de novo by the state agency. §§404.909(a), 416.1409(a). Second, the claimant is entitled to a hearing before an administrative law judge (ALJ) within the Bureau of Hearings and Appeals of the Social Security Administration. 42 U. S. C. §§ 405(b)(1), 1383(c)(1) (1982 ed. and Supp. Ill); 20 CFR §§404.929, 416.1429, 422.201 et seq. (1986). Third, the claimant may seek review by the Appeals Council. 20 CFR §§404.967 et seq., 416.1467 et seq. (1986). Once the claimant has exhausted these administrative remedies, he may seek review in federal district court. 42 U. S. C. § 405(g). See generally Bowen v. City of New York, 476 U. S. 467, 472 (1986). II Respondent Janet Yuckert applied for" } ]

[ { "docid": "8123248", "title": "", "text": "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). The substantive requirements for SSI benefits are substantially the same as those for Social Security disability benefits under Title II of the Social Security Act (“SSA”). Donahue v. Barnhart, 279 F.3d 441, 443 (7th Cir.2002). The Commissioner uses a five-step sequential process in order to determine if an individual is disabled. 20 C.F.R. § 404.1520(a). The sequential evaluation ends if the ALJ, at any step of the process, finds that the claimant is not disabled. Id. The ALJ must inquire: (1) whether the claimant is working and the work is substantial gainful activity, (2) whether the claimant’s impairment is severe, (3) whether the impairments meet or equal a listed impairment in 20 C.F.R., pt. 404, subpt. P, Appendix 1, (4) whether the claimant is able to perform his past relevant work, and (5) whether the claimant’s age, education, and past relevant work experience in reference to his residual functional capacity, enables him to do other work. 20 C.F.R. § 404.1520(b)-(f). In order to determine whether the claimant can perform any past relevant work (step 4), the ALJ assesses the claimant’s residual functional capacity (“RFC”). 20 CFR § 404.1520(e). The RFC is defined as the most that an individual can do after considering the effects of physical and mental limitations that affect her ability to perform work-related activities. 20 CFR § 404.1545. The burden of proof is on the claimant through step four; the burden shifts to the Commissioner only at step five. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.2000). Claimant raises three problems with the Commissioner’s decision: 1) the ALJ erred in crediting Dr. Fischer over Dr. Rizzo, 2) having found that Claimant often had deficiencies in concentration, persistence, and pace, the ALJ failed to adequately transform the impairments into a hypothetical to the VE, and 3) the ALJ erred in" }, { "docid": "14838872", "title": "", "text": "expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An individual is under a disability if she is unable to do her previous work and cannot, considering her age, education, and work experience, partake in any gainful employment that exists in the national economy. § 423(d)(2)(A). The Commissioner uses a five-step sequential process in order to determine if an individual is disabled. 20 C.F.R. § 404.1520. The sequential evaluation ends if the ALJ, at any step of the process, finds the claimant is not disabled. § 404.1520(a)(4). The ALJ must inquire: 1) whether the claimant is working and whether the work is a substantial gainful activity; 2) whether the claimant’s impairment is severe; 3) whether the impairments meet or equal a listed impairment in 20 C.F.R. pt. 404, subpt. P, app. 1; 4) whether the claimant is able to perform her past relevant work; and 5) whether the claimant’s age, education, and past relevant work experience in reference to her RFC, enables her to do other work. § 404.1520(a)(4)(i)-(v). A person’s RFC is what she can do despite any physical and mental limitations. § 404.1545(a)(1). The burden of proof is on the claimant through step four of the analysis; the burden then shifts to the Commissioner at step five. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.2000) (citing Knight v. Chater, 55 F.3d 309, 313 (7th Cir.1995)). IV. ANALYSIS Claimant argues that the ALJ’s decision should be reversed for four reasons. In particular, Claimant’s arguments consist of the following: 1) the ALJ failed to consider the treating pulmonologist’s letter disagreeing with the ME; 2) the ALJ did not order a consultative examination as suggested by the ME; 3) the ALJ made a conclusory rejection of Claimant’s credibility regarding pain and symptoms; and 4) the ALJ failed to consider the VE’s entire testimony. Each of the aforementioned issues will be discussed in turn. A. THE ALJ DID NOT IMPROPERLY EVALUATE THE EFFECTS OF CLAIMANT’S PULMONARY DISORDER. The first issue involves the limitations imposed by reason of Claimant’s pulmonary function impairment. Claimant argues" }, { "docid": "21182242", "title": "", "text": "the regulations, the ALJ then asks whether she has residual functional capacity to perform her past work despite her severe impairment. 5. If she is unable to perform her past work, the burden shifts to the ALJ to prove that the claimant retains the residual functional capacity to perform alternative work. 20 C.F.R. §§ 404.1520, 416.920; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (citing Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)). The claimant bears the burden of proof as to the first four steps, while the ALJ bears the burden of proof as to the fifth step. See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). In proceeding through the five-step analysis, the Commissioner must consider four factors: “(1) objective medical facts; (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability; and (4) the claimant’s educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). In this case, the ALJ adhered to the appropriate five-step analysis. At step one, the ALJ found that the plaintiff had not engaged in gainful activity since December 28, 1998. At steps two and three, the ALJ found that the medical evidence established the plaintiff was severely impaired by her neck, shoulder, and back injury, but that this impairment did not meet or equal the criteria of any impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.l. At step four, the ALJ found that the plaintiff retained the functional capacity to perform her past relevant work as a sewing machine operator. Because the ALJ was satisfied the plaintiff, despite her impairment, could still perform the light work of sewing machine operator, he did not proceed to the fifth step. The plaintiff makes two primary arguments why the ALJ’s conclusions are incorrect: (1) the ALJ wrongly rejected the opinions of the plaintiffs treating physicians; and (2) the ALJ failed to properly assess the plaintiffs credibility and erred in rejecting her subjective complaints. D. Analysis 1. The Treating Physician Rule" }, { "docid": "10816836", "title": "", "text": "severity that she is unable to do her previous work and cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful activity. 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B). In making the disability determination, the ALJ follows a five-step sequential analysis. If the ALJ makes a determination of non-disability at any step, the evaluation will not continue to the next step. 20 C.F.R. § 416.920(a)(4). The following five steps are followed: 1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity. 2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities. 3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience. 4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant’s severe impairment, he or she has residual functional capacity to perform his or her past work. 5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps. Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000); see 20 C.F.R. §§ 404.1520, 416.920. Here, in applying the five-step sequential evaluation, ALJ Brady made the following determinations. At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 22, 2006, the alleged onset date of her disability. (Tr. 19). At the second step, the ALJ found that Plaintiff has the following severe impairments: history of herniated nucleus pulposus of the lumbar spine, degenerative disc disease of the lumbar spine, obesity, and fibromyalgia. (Id.). The ALJ also" }, { "docid": "2081957", "title": "", "text": "bears the burden of demonstrating an inability to return to her past relevant work. Plummer, 186 F.3d at 428. If the claimant is unable to resume her former occupation, the evaluation moves to Step Five. Id. At Step Five, the Commissioner has the burden of demonstrating that the claimant is capable of performing other jobs existing in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(f), 416.920(f). At Step Five, the Commissioner is to consider the claimant’s vocational factors. 20 C.F.R. §§ 404.1520(f), 416.920(f). III. Thomas argues that because her position as an elevator operator was eliminated and does not appear in significant numbers in the national economy, the ALJ should have proceeded to Step Five of the sequential process. We agree that at Step Four, Thomas should have been permitted to show that her previous work as an elevator operator no longer exists in substantial numbers in the national economy. At Step Four of the sequential process, the Commissioner must determine whether the claimant can perform her past relevant work. Based on the language of the relevant provisions of the Social Security Act and the broader statutory scheme, we hold that, for the purposes of Step Four of the evaluation process, a claimant’s previous work must be substantial gainful work which exists in the national economy. Thus, a claimant may proceed to Step Five by showing either that she cannot perform her past relevant work or that the previous work is not substantial gainful work that exists in the national economy. The statute defines disability as follows: “An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. § 423(d) (emphasis added). Thus, an individual is disabled only if “he is not only unable to do his previous work but cannot ... engage in any other kind of substantial" }, { "docid": "21182241", "title": "", "text": "gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d). The impairment must be of “such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). Federal regulations set forth a five-step analysis that the Commissioner must follow in evaluating disability claims: 1. The ALJ must consider whether the claimant is currently engaged in substantial gainful activity. 2. If not, the ALJ must consider whether the claimant has a “severe impairment” which limits her mental or physical ability to do basic work activities. 3. If the claimant has a “severe impairment,” the ALJ must ask whether, based solely on medical evidence, that limitation is listed in Appendix 1 of the regulations. 4. If the impairment is not “listed” in the regulations, the ALJ then asks whether she has residual functional capacity to perform her past work despite her severe impairment. 5. If she is unable to perform her past work, the burden shifts to the ALJ to prove that the claimant retains the residual functional capacity to perform alternative work. 20 C.F.R. §§ 404.1520, 416.920; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (citing Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)). The claimant bears the burden of proof as to the first four steps, while the ALJ bears the burden of proof as to the fifth step. See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). In proceeding through the five-step analysis, the Commissioner must consider four factors: “(1) objective medical facts; (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability; and (4) the claimant’s educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). In this case, the" }, { "docid": "22975214", "title": "", "text": "work as a bartender because of his temper. He also testified that he generally sticks close to home—doing housework, playing computer games, and watching television. When he does go out socially, he relies on his wife to keep him from offending others. Tamara Young corroborated her husband’s testimony, noting in particular her husband’s memory and temperament problems. II. The Commissioner has set forth a five-step evaluation process to determine whether a claimant is disabled. Following this process, the ALJ considered: (1) Whether Young was currently engaged in substantial gainful activity? (2) Whether Young had a severe impairment? (3) Whether Young’s impairment met or equaled one of the impairments listed in the SSA regulations? (4) Whether Young could perform his past relevant work? (5) Whether Young could make the adjustment to other work? 20 C.F.R. § 404.1520(a)(4)(i)-(iv). Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir.2004). The process is sequential, and if the ALJ can make a conclusive finding at any step that the claimant either is or is not disabled, then she need not progress to the next step. 20 C.F.R. § 404.1520(a)(4). If the claimant makes it past step four, the burden shifts to the Commissioner to demonstrate that the claimant can successfully perform a significant number of jobs that exist in the national economy. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir.2001). In this case, the ALJ proceeded through all five steps of the analysis. He concluded that (1) Young had not engaged in substantial gainful activity during the relevant time period, (SSA Decision at 7); (2) Young’s impairments were severe, {Id. at 2, 7); (3) they did not meet or equal one of the impairments listed in the SSA regulations, (Id. at 7-8); (4) Young could not perform his past relevant work, {Id. at 8); and (5) Young could, in fact, make the adjustment to work at a number of jobs which exist in the national economy in significant numbers. {Id. at 8-9). At the fourth and fifth steps, the ALJ must consider an assessment of the claimant’s residual functional capacity (“RFC”). The RFC is an" }, { "docid": "2081956", "title": "", "text": "Supplemental Security Income benefits). Social Security regulations provide for a sequential evaluation process for determining whether a claimant is under a disability. 20 C.F.R. §§ 404.1520, 416.920; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.1999). At Step One, the Commissioner must determine whether the claimant is currently engaging in a “substantial gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, she is not eligible. 20 C.F.R. §§ 404.1520(b), 416.920(b). At Step Two, the Commissioner must determine whether the claimant has a “severe impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment, then she is not eligible. 20 C.F.R. §§ 404.1520(c), 416.920(c). At Step Three, if a claimant does not suffer from an impairment on the list of impairments presumed to be severe enough to preclude gainful work, the Commissioner moves to Step Four. 20 C.F.R. §§ 404.1520(d), 416.920(d). Step Four requires the Commissioner to decide whether the claimant retains the residual functional capacity to perform her past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). The claimant bears the burden of demonstrating an inability to return to her past relevant work. Plummer, 186 F.3d at 428. If the claimant is unable to resume her former occupation, the evaluation moves to Step Five. Id. At Step Five, the Commissioner has the burden of demonstrating that the claimant is capable of performing other jobs existing in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(f), 416.920(f). At Step Five, the Commissioner is to consider the claimant’s vocational factors. 20 C.F.R. §§ 404.1520(f), 416.920(f). III. Thomas argues that because her position as an elevator operator was eliminated and does not appear in significant numbers in the national economy, the ALJ should have proceeded to Step Five of the sequential process. We agree that at Step Four, Thomas should have been permitted to show that her previous work as an elevator operator no longer exists in substantial numbers in the national economy. At Step Four of the sequential process, the Commissioner must determine whether the claimant can perform her past relevant work. Based on the" }, { "docid": "22769758", "title": "", "text": "support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). “Where the evidence as a whole can support either a grant or a denial, we may not substitute our judgment for the ALJ’s.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir.2007) (internal quotation marks omitted). DISCUSSION ALJs are to apply a five-step sequential review process in determining whether a claimant qualifies as disabled. Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); 20 C.F.R. §§ 404.1520, 416.920. The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five. See Tackett, 180 F.3d at 1099. If the ALJ determines that a claimant is either disabled or not disabled at any step in the process, the ALJ does not continue on to the next step. See 20 C.F.R. § 416.920(a)(4). The first step is not at issue. Both Bray and the Commissioner agree that Bray is not currently performing substantial gainful work. See 20 C.F.R. § 416.920(a)(4)(i). At steps two and three, the ALJ found that Bray’s COPD and her depression and anxiety were severe impairments, but that neither corresponded to the listed impairments in the regulations. See 20 C.F.R. § 404.1520(d). Bray does not challenge this finding. Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s RFC. See 20 C.F.R. § 416.920(e). Bray contests the ALJ’s construction of her RFC. At step four the ALJ must determine whether, in light of the claimant’s RFC, she can return to substantial gainful activity performed in the past. 20 C.F.R. § 404.1520(e). The ALJ determined that Bray was not capable of returning to her past relevant work as a medical assistant or insurance underwriter, and neither party disputes that finding. At step five, the Commissioner must establish that the claimant is capable of performing substantial gainful work. The ALJ stated Bray’s RFC in this way: The claimant has the [RFC] to lift 20 pounds occasionally and 10 pounds frequently. She can stand and walk 6 hours out of an 8-hour" }, { "docid": "12311697", "title": "", "text": "follows a five-step sequential analysis. If the ALJ makes a determination at any step, the evaluation will not continue to the next step. 20 C.F.R. § 416.920(a)(4). The following five steps are followed: 1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity. 2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities. 3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumer ated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience. 4. If the-impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant’s severe impairment, he or she has residual functional capacity to perform his or her past work. '5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps. Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000); see 20 C.F.R. §§ 404.1520, 416.920. Here, in applying the five-step sequential analysis at the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity for the relevant time period. (Tr. 26). At the second step, the ALJ determined that Plaintiff suffered the severe impairments of bipolar disorder and anxiety disorder, but that Plaintiffs impairments of obesity and hypothyroidism were not severe. (Id.). At the third step, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment—specifically Listings 12.04 and 12.08—of 20 C.F.R. Pt. 404, Subpart P, Appendix 1. (Tr. 27). The ALJ determined that Plaintiff had the residual functional capacity to: perform a full range of work" }, { "docid": "14799286", "title": "", "text": "Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir.2009) (“To establish eligibility for Social Security benefits, a claimant has the burden to prove he is disabled.”). The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. §§ 404.1520, 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments (“Listing”), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform her past work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g). Moreover, where there is evidence of a mental impairment that may prevent a claimant from working, the Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing mental impairments. Maier v. Comm’r of the Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir.1998) (per curiam). However, “[a] finding of ‘disabled’ under the five-step inquiry does not automatically qualify a claimant for disability benefits.” Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.2001); Parra, 481 F.3d at 746. Rather, the Act provides that “[a]n individual shall not be considered disabled ... if alcoholism or drug addiction would ... be a contributing factor material to the Commissioner’s determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). For claimants such as plaintiff, who have substance abuse dependency, the ALJ" }, { "docid": "22386771", "title": "", "text": "considered unable to engage in any substantial gainful activity “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. § 423(d)(2)(A). This disability determination is made by the Commissioner based on a five-step sequential evaluation process promulgated by the Social Security Administration (“SSA”). See 20 C.F.R. § 404.1520. In Plummer, this Court set out the relevant steps as follows: In step one, the Commissioner must determine whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. § [404.]1520(a). If a claimant is found to be engaged in substantial activity, the disability claim will be denied. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290-91, 96 L.Ed.2d 119 (1987). In step two, the Commissioner must determine whether the claimant is suffering from a severe impairment. 20 C.F.R. § 404.1520(c). If the claimant fails to show that her impairments are “severe,” she is ineligible for disability benefits. In step three, the Commissioner compares the medical evidence of the claimant’s impairment to a list of impairments presumed severe enough to preclude any gainful work. 20 C.F.R. § 404.1520(d). If a claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five. Step four requires the ALJ to consider whether the claimant retains the residual functional capacity to perform her past relevant work. 20 C.F.R. § 404.1520(d). The claimant bears the burden of demonstrating an inability to return to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994). If the claimant is unable to resume her former occupation, the evaluation moves to the final step. At this stage, the burden of production shifts to the Commissioner, who must demonstrate the claimant is capable of performing other available work in order to deny a claim of disability. 20 C.F.R. § 404.1520(f). The ALJ must show there are other jobs" }, { "docid": "11338154", "title": "", "text": "such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.... 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1328c(a)(3)(B). Pursuant to SSA regulations, the Commissioner utilizes a sequential five-step analysis to determine whether a plaintiff is disabled. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. In particular, the Commissioner considers the following factors, in order: First, if the claimant is currently working, then the claimant is automatically considered not disabled; second, if the claimant does not have a severe impairment—one “which significantly limits his or her physical or mental capacity to perform basic work-related functions”—then the claimant is automatically considered not disabled; third, if the claimant has an impairment equivalent to a specific list of impairments contained in Appendix 1 of the regulations, then the claimant has an impairment of such a serious degree of severity that the claimant is found automatically disabled; fourth, if the claimant has a severe impairment but can still meet the physical and mental demands of work he has performed in the past, then the claimant is not disabled; fifth, considering the claimant’s age, education, and experience, if the claimant’s severe impairment prevents him from performing not only his past work, but also other work available in the national economy, then the claimant is disabled. See Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir.1982) (applying five-step analysis to Social Security Disability Insurance claim); see also 20 C.F.R. §§ 404.1520, 416.920. The plaintiff bears the burden in the first four steps of showing that she is disabled. See Goodermote, 690 F.2d at 7. Once the claimant has established that she is unable to return to her former employment, however, the burden shifts to the Commissioner to prove the fifth step, that the claimant is able to engage in substantial gainful activity that exists in significant numbers in the national economy. See id. B. Disability Analysis Evaluating the evidence in this case according to the required five-step analysis, the ALJ" }, { "docid": "22386772", "title": "", "text": "fails to show that her impairments are “severe,” she is ineligible for disability benefits. In step three, the Commissioner compares the medical evidence of the claimant’s impairment to a list of impairments presumed severe enough to preclude any gainful work. 20 C.F.R. § 404.1520(d). If a claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five. Step four requires the ALJ to consider whether the claimant retains the residual functional capacity to perform her past relevant work. 20 C.F.R. § 404.1520(d). The claimant bears the burden of demonstrating an inability to return to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994). If the claimant is unable to resume her former occupation, the evaluation moves to the final step. At this stage, the burden of production shifts to the Commissioner, who must demonstrate the claimant is capable of performing other available work in order to deny a claim of disability. 20 C.F.R. § 404.1520(f). The ALJ must show there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity. The ALJ must analyze the cumulative effect of all the claimant’s impairments in determining whether she is capable of per forming work and is not disabled. See 20 C.F.R. § 404.1523. The ALJ will often seek the assistance of a vocational expert at this fifth step. See, [sic] Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.1984). 186 F.3d at 428. In this case, the ALJ undertook the five-step sequential evaluation in determining that Fargnoli was not disabled. The ALJ made the following findings: (1) Fargnoli had not engaged in any substantial gainful activity since the alleged onset date of disability; (2) he suffers from a severe back impairment; (3) his back impairment, although severe, does not meet or equal the criteria of the Listing of Impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) he retains the residual functional capacity to engage in" }, { "docid": "17202262", "title": "", "text": "1382c(a)(3)(A). With certain exceptions not relevant here, an individual is disabled “only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. §§ 423(d)(1)(A), 1382c(a)(3)(B). The Commissioner has established a five-step sequential evaluation process for assessing a claimant’s alleged disability. See 20 C.F.R. §§ 404.1520, 416.920. The claimant carries the burden of proof on the first four steps. Id. §§ 404.1520, 416.920. First, the claimant must demonstrate that she is not presently engaged in “substantial gainful” work. Id. §§ 404.1520(b), 416.920(b). Second, a claimant must show that she has a “severe impairment” that “significantly limits [her] physical or mental ability to do basic work activities.” Id. §§ 404.1520(c), 416.920(c). Third, if the claimant suffers from an impairment that meets the duration requirement and meets or equals an impairment listed in Appendix 1 to the Commissioner’s regulations, she is deemed disabled and the inquiry is at an end. Id. §§ 404.1520(d), 416.920(d). If the claimant does not satisfy step three, the inquiry proceeds to the fourth step, which requires her to show that she suffers an impairment that renders her incapable of performing “past relevant work.” Id. §§ 404.1520(e), 416.920(e). Once a claimant has carried the burden on the first four steps, the burden shifts to the Commissioner on step five to demonstrate that the claimant is able to perform “other work” based on a consideration of her “residual functional capacity” (RFC), age, education and past work experience. Id. §§ 404.1520(f), 416.920(f). It is the ALJ’s application of this analytical sequence that prompted Butler’s appeal. III. Prior Proceedings Butler applied for disability insurance benefits and supplemental security income on October 10, 1996 and September 12, 1996, respectively, claiming that she had become disabled and unable to work on August 7, 1995 as the result of back pain and migraine headaches. Her applications were rejected at every stage of the administrative process. The SSA" }, { "docid": "2787110", "title": "", "text": "ability to do work activities,” Berry, 675 F.2d at 467. If the claimant does suffer such an impairment, the third step is “whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations.” Berry, 675 F.2d at 467; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If so, the claimant is per se “disabled” and thus presumptively qualified for benefits. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If not, the Commissioner proceeds to the fourth step and examines whether, “despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work.” Berry, 675 F.2d at 467; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is unable to perform his past work, the Commissioner finally determines whether there is other work the claimant can perform, taking into consideration the claimant’s RFC, age, education, and work experience. See 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Berry, 675 F.2d at 467. The claimant bears the burden of proof as to the first four steps. See Rosa, 168 F.3d at 77; Berry, 675 F.2d at 467. Once the claimant has fulfilled his burden, it shifts to the Commissioner at step five. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.2009). This, however, is only a limited burden shift, in that the Commissioner “need only show that there is work in the national economy that the claimant can do; he need not provide additional evidence of the claimant’s residual functional capacity.” Id.; see also 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2). A. Treating Physician Rule Petrie first contends that the ALJ misapplied the Treating Physician Rule by failing to give various medical opinions controlling weight. He also argues that the ALJ had an obligation to re-contact Petrie’s treating sources when he found their opinions inadequate. Further, Petrie argues that, in giving his treating physicians’ opinions minimal weight, the ALJ failed to consider all relevant factors. Pe-trie’s objections have no merit. “A treating physician’s statement that the claimant is disabled cannot itself be determinative.” Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (internal quotation marks" }, { "docid": "21311113", "title": "", "text": "this impairment must have lasted or be expected to last.for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(h), 416.920(a)(4)(h). If the claimant has a severe impairment, the analysis proceeds ,to step three. , . „ , 3. Does the claimant’s severe impairment “meet-or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(hi), 416.920(a)(4)(iii). If the , impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant’s “residual functional capacity” (“RFC”). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. '20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis proceeds to step four. 4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five. 5. Considering the claimant’s RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers' in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id. See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.2001). The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999); Yuckert, 482 U.S. at 140-41, 107 S.Ct. 2287. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the" }, { "docid": "14602827", "title": "", "text": "and cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful activity. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). In making the disability determination, the ALJ follows a five-step sequential analysis. If the ALJ makes a determination at any step, the evaluation will not continue to the next step. 20 C.F.R. § 416.920(a)(4). ■ The following five steps are followed: 1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity. 2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities. 3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, .without considering vocational factors such as age, education, and work experience. 4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant’s severe impairment, he or she has residual functional capacity to perform his or her past work. 5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps. Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000); see 20 C.F.R. §§ 404.1520, 416.920. C. Analysis of ALJ’s Determination 1. Step One In applying the five-step sequential analysis at the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 1, 2009, the alleged onset date. (Dkt. 1-2 at 7). The parties do not contest this determination and it is supported by substantial evidence. 2.Step Two At the second step, the ALJ found that Plaintiff had the following severe impairments: obesity, depression, anxiety, and bipolar disorder. (Id.). The ALJ also noted that Plaintiff had asthma, but found this" }, { "docid": "21311114", "title": "", "text": "RFC, the analysis proceeds to step four. 4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five. 5. Considering the claimant’s RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers' in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id. See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.2001). The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999); Yuckert, 482 U.S. at 140-41, 107 S.Ct. 2287. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant’s residual functional- capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966-(describing “work which exists in the national economy”). If the Commissioner fails- to -meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099. C. The ALJ’s Decision At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity sirice May 1.3, 2011, the application date. AR 13, At step two, the ALJ found that Plaintiff had the following severe impairments: “history of cochlear implant, history of reticular dysgenesis, organic bra[i]n syndrome, anxiety disorder, and affective disorder.” Id. The ALJ found that other symptoms and complaints appear periodically in' Plaintiffs medical treatment records, including" }, { "docid": "9274872", "title": "", "text": "is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a \"severe impairment\" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform. Jasinski v. Barnhart , 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted). If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden at the fifth step. See Melville v. Apfel , 198 F.3d 45, 51 (2d Cir. 1999) ; Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998). To support a finding that the claimant is not disabled at step five, the Commissioner must offer evidence demonstrating that other work exists in significant numbers in the national and local economies that the claimant can perform, given the claimant's residual functional capacity (RFC), age, education, and past relevant work experience. See 20 C.F.R. §§ 404.1512(f) (2015), 404.1560(c), 406.912(f) (2015), 416.960(c). \"Under the law of this Circuit and the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden.\" Lacava v. Astrue , 2012 WL 6621731, at *18 (S.D.N.Y. Nov. 27, 2012) (citations omitted), report and recommendation adopted , 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012). Prior to steps four and five, the" } ]

[ { "docid": "22829649", "title": "", "text": "Me. Justice Brennan delivered the opinion of the Court. This case presents the question of the adequacy of a “freedom-of-choice” plan as compliance with Brown v. Board of Education, 349 U. S. 294 (Brown II), a question also considered today in No. 695, Green v. County School Board of New Kent County, ante, p. 430. The factual setting is very similar to that in Green. This action was brought in September 1965 in the District Court for the Eastern District of Arkansas. Injunctive relief was sought against the continued maintenance by respondent Board of Education of an alleged racially segregated school system. The school district has an area of 80 square miles and a population of some 3,000, of whom 1,800 are Negroes and 1,200 are whites. Persons of both races reside throughout the county; there is no residential segregation. The school system consists of two combination elementary and high schools located about 10 blocks apart in Gould, the district’s only major town. One combination, the Gould Schools, is almost all white and the other, the Field Schools, is all-Negro. In the 1964-1965 school year the schools were totally segregated; 580 Negro children attended the Field Schools and 300 white children attended the Gould Schools. Faculties and staffs were and are segregated. There are no attendance zones, each school complex providing any necessary bus transportation for its respective pupils. The state-imposed segregated system existed at the time of the decisions in Brown v. Board of Education, 347 U. S. 483, 349 U. S. 294. Thereafter racial separation was required by School Board policy. As in Green, respondent first took steps in 1965 to abandon that policy to remain eligible for federal financial aid. The Board adopted a “freedom-of-choice” plan embodying the essentials of the plan considered in Green. It was made immediately applicable to all grades. Pupils are required to choose annually between the Gould Schools and the Field Schools and those not exercising a choice are assigned to the school previously attended. The experience after three years of operation with “freedom of choice” has mirrored that in Green. Not" } ]

[ { "docid": "23302770", "title": "", "text": "836, adopted en banc, 380 F.2d 385, cert. denied sub nom. Caddo Parish School Board v. United States, 1967, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103. Much of what we said in our opinion in that ease applies to any school desegregation plan. We held that school officials have an “affirmative duty” to reorganize their schools into “an integrated, unitary school system in which there are no Negro schools and no white schools — just schools”. 380 F.2d at 389. We recognized that freedom-of-choice plans have “serious shortcomings” and suggested a detailed order to attempt to overcome some of the shortcomings. We pointed out, “The only school desegregation plan that meets constitutional standards is one that works.” (Original emphasis.) 372 F.2d at 847. Recently, the Supreme Court has underscored a school board’s “affirmative duty” today “to come forward with a plan that promises realistically to work, and promises realistically to work now”. (Original emphasis.) Green v. County School Board of New Kent County, Virginia, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716. In Green the Court found that the freedom of choice plan used in New Kent County was ineffective and suggested alternatives, including zoning, that might bring about a “speedier and more effective conversion [of the dual system] to a unitary, nonracial school system”. A geographic system of allocating students to schools is a pragmatic solution that avoids the “haphazard” element in administering a freedom of choice plan based on the individual pupil’s considered or perhaps capricious selection of a school to attend. A district court in Louisiana recently observed: If this Court must pick a method of assigning students to schools within a particular school district, barring very unusual circumstances, we could imagine no method more inappropriate, more unreasonable, more needlessly wasteful in every respect, than the so-called “free-choice” system. Moses v. Washington Parish School Board, E.D.La. 1967, 276 F.Supp. 834. Historically, a compulsory attendance zone system almost invariably prevailed in the school districts in this circuit — until Brown ordered an end to school segregation. But an attendance zone plan also may fail" }, { "docid": "6017059", "title": "", "text": "wishes of the Commission Council. The testimony of ex-Sehool Board member Dallas Picou is particularly revealing. He stated that the motion to transfer the property from the School Board to the Commission Council was rushed through with virtually no debate after Leander Perez, Sr., former president of the Council, told the School Board .the transfer was necessary to fight the integration suit. Picou testified to other instances in which the School Board followed Council suggestions without discussion. . The United States Supreme Court has cast doubt on the continued utility of freedom-of-choice plans to achieve the elimination of the dual school system in its recent important trilogy of decisions dealing with various desegregation plans. Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Education of Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968) ; Monroe v. Board of Commissioners of the City of Jackson, Tenn., 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). We have not hesitated to require .adoption of some plan other than freedom-'of-choice when its operation produces only minimal desegregation and vestiges of the dual school system remain. See, e. g., Adams v. Mathews, 5 Cir. 1968, 403 F.2d 181; United States v. Greenwood Municipal Separate School District, supra; Anthony v. Marshall County Board of Education, 5 Cir., 1969, 409 F.2d 1287 [April 15, 1969]; United States v. Indianola Municipal Separate School District, et al., 5 Cir. 1969, 410 F.2d 626 [April 11, 1969]. . That case, decided over fifty years ago, obviously has not the slightest application to limiting the power of a district judge to fashion an appropriate decree in a desegregation case. In McAdoo, the only issue was whether the duties of the Secretary of the Treasury with regard to collection of sugar tariffs were ministerial or executive and thus discretionary. The court concluded that they were discretionary and that the courts could not order the Secretary to perform a discretionary act. The School Board’s duty, on the other hand, is not discretionary." }, { "docid": "10779558", "title": "", "text": "at 254. This action literally transformed an integrated system (albeit a very new one) into a racially segregated system in direct contravention of the United States Constitution and the ruling of the Supreme Court in Brown I, supra. The inclusion of the voluntary open enrollment provision in the July 6 resolution will not remove the rescission’s constitutional infirmities. The United States Commission on Civil Rights has reported, “One of the primary reasons school districts undergoing desegregation favor freedom-of-choice plans is that they do not work.” The Supreme Court has noticed that the “general experience under ‘freedom of choice’ to date has been such as to indicate its ineffectiveness as a tool of desegregation,” and has held, “if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary, nonracial school system, ‘freedom of choice’ must be held unacceptable.” Green v. County School Board, 391 U.S. 430, 440-441, 88 S.Ct. 1689, 1695-1696, 20 L.Ed.2d 716 (1968). See also Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968); Swann, supra, 402 U.S. at 7, 91 S.Ct. 1267, 28 L.Ed.2d 554. Considering the circumstances surrounding the adoption of the July 6 voluntary open enrollment provision, the court concludes that it was not intended to operate as an effective desegregation device. The voluntary open enrollment plan was intended to be an empty gesture toward compliance with the requirements of the Constitution, while the reality was that the May 7 desegregation plan was being effectively rescinded and nullified. This court also finds that on and after July 6 the May 7 plan was, to say the least, a “reasonably available” way to achieve a “speedier and more effective conversion to a unitary, nonracial school system” as required by the Constitution than the voluntary open enrollment plan. Green, supra, 391 U.S. at 441, 88 S.Ct. at 1696. V. The May 7 desegregation plan necessarily involved some transportation of students to fulfill its goals of providing equal" }, { "docid": "14218802", "title": "", "text": "of the schools result in a surplus of teachers, or if for any other reason related to desegregation it becomes necessary to dismiss or pass over teachers for retention, a teacher will be dismissed or passed over only upon a determination that his qualifications are inferior as compared with all other teachers in the consolidated system.” The operation of the freedom of choice plan in 1966 resulted in the transfer of a number of negro pupils to the Nashville high school for the 1966-67 term. As a consequence, the Nashville district decided to reduce the faculty of the temporarily continuing negro high school by at least one teacher. This reduction, however, was not effected. The operation of the freedom of choice plan in 1967 resulted in most of the remaining negro pupils in the high school grades at Childress indicating a desire to attend Nashville for the 1967-68 term. As a consequence, the Nashville district abolished those grades at Childress and assigned all high school pupils to Nashville for the ensuing year. The appeal in No. 19,062 thus focuses on the question whether Nashville’s failure to continue the employment of appellants White, Mrs. Walton and King rested on racial considerations. The appeal embraces no complaint as to the workings of the freedom of choice plan. The record reveals the plan’s effectiveness for the high school grades at Childress-Nashville. Not present here, therefore, are the issues ruled upon in Green v. County School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Educ. of the Gould School Dist., 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); and Monroe v. Board of Comm’rs of the City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). We bear in mind that Arkansas has no teachers’ civil service or tenure law in any real sense. Teachers are employed in the State on a year-to-year renewal basis. § 80-1304(b); Shelton v. Tucker, 364 U.S. 479, 482, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Johnson v. Wert, 225 Ark. 91, 279" }, { "docid": "22434205", "title": "", "text": "questioned the propriety of the “pairing” order of June 25, 1969, which was designed to remedy the condition that offended the Constitution. Both before and after it became a city, Emporia educated its children in the county schools. Only when it became clear — 15 years after our decision in Brown v. Board of Education, 347 U. S. 483 — that segregation in the county system was finally to be abolished, did Emporia attempt to take its children out of the county system. Under these circumstances, the power of the District Court to enjoin Emporia’s withdrawal from that system need not rest, upon an independent constitutional violation. The court’s remedial power was invoked on the basis of a finding that the dual school system violated the Constitution, and since the city and the county constituted but one unit for the purpose of student assignments during the entire time that the dual system was maintained, they were properly treated as a single unit for the purpose of dismantling that system. In Green v. County School Board, 391 U. S. 430, the issue was whether the school board’s adoption of a “freedom of choice” plan constituted adequate compliance with the mandate of Brown v. Board of Education, 349 U. S. 294 (Brown II). We did not hold that a freedom-of-choice plan is of itself unconstitutional. Rather, we decided that any plan is “unacceptable” where it “fails to provide meaningful assurance of prompt and effective disestablishment of a dual system. . . .” 391 U. S., at 438. In Monroe v. Board of Commissioners, 391 U. S. 450, we applied the same principle in rejecting a “free transfer” plan adopted by the school board as a method of desegregation: “We do not hold that ‘free transfer’ can have no place in a desegregation plan. But like ‘freedom of choice,’ if it cannot be shown that such a plan will further rather than delay conversion to a unitary, nonracial, nondiscriminatory school system, it must be held unacceptable.” Id., at 459. The effect of Emporia’s proposal was to erect new boundary lines for the purpose" }, { "docid": "16383035", "title": "", "text": "have been of great assistance in the findings which hereinafter appear. However, our findings are much more restricted in scope because of the limited nature of the Court of Appeals’ mandate. Our original opinion herein was by its terms “filed as the Court’s findings and conclusions in compliance with Rule 52 (a), Federal Rules of Civil Procedure,” and it is not only not deemed necessary to reiterate the material set forth in that opinion, but it also would appear that such repetition would constitute only a burdensome excess. Accordingly, and in conformity with what we understand to be the direction of the Court of Appeals, this Court’s findings of fact are those set forth in the original opinion and herein, read together. ,Plaintiffs urge that a group of Supreme Court cases have substantially modified the law since the date of the Court of Appeals’ decision herein. The cases cited in this context are Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, Raney [sic] v. Board of Education, Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 and Monroe v. Board of Commissioners of City of Jackson, Tennessee, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733, all of which were decided May 27, 1968. However, none of these cases is applicable because each involved a review by the Supreme Court of desegregation plans in school districts that had formerly operated under de Jure segregation. So-called “freedom of choice” plans had been adopted in each instance, and it was held that they did not comply with the desegregation requirement of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). In his opinion in the present case, Chief Judge Weick observed, “At the outset it should be pointed out that the State of Ohio abolished segregation in the public schools on February 22, 1887, which was more than 67 years before the Supreme Court barred it on constitutional grounds in the momentous decision of Brown v. Board of Education, 347 U.S. 483," }, { "docid": "3897691", "title": "", "text": "JOHN R. BROWN, Chief Judge. This is an appeal from an order of the District Court entered pursuant to the remand from Singleton v. Jackson Municipal Separate School District (Singleton III), 5 Cir., 1969, 419 F.2d 1211 (consolidated cases en banc), rev’d in part, sub nom., Carter v. West Feliciana Parish School Bd., 1970, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477. Prior to this remand the district was operating under a Jefferson model freedom-of-choice plan. And after remand for the adoption of a unitary plan the District Court called for the school board to invoke the assistance of the Office of Education of the United States Department of Health, Education and Welfare in preparing new desegregation plans. HEW filed a plan with three alternative proposals for secondary schools. The school board proposed modifications (see note 8, infra) that reduced the amount of desegregation that would result and these modifications were, after an evidentiary hearing on January 19, 1970, for the most part approved by the District Court. And this new plan was ordered implemented on February 1, 1970. Our concern is whether the system approved by the District Court is unitary. We believe that, although faculty, staff, extra curricular activities, etc., see Green v. County School Bd. of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; Ellis v. Board of Public Inst, of Orange Cty., 5 Cir., 1970, 423 F.2d 203, appear so far to have become unitary, the existence of a substantial number of schools with segregated student bodies, the students of which will for a large part have a completely segregated education, prevents the system from being a unitary one when there is a reasonable alternative plan that will result in a more nearly unitary system. We thus remand this case. I. The Proposals for Unitary System At the commencement of the 1969-70 school year, Jackson had 10,527 Negro and 10,432 white elementary school students attending 38 elementary schools. Of those schools, 13 were all- or virtually all-Negro and 20 were all- or nearly all-white. Of the 5 substantially integrated schools," }, { "docid": "23623525", "title": "", "text": "county system. The Oxford schools, under the court-adopted plan, supported by the city, would serve an area beyond the city limit of Oxford. Thus, the schools of Oxford would continue to be an integral part of the county school system. The students and schools of Oxford, therefore, must be considered for the purpose of this case as a part of the Calhoun County school system. III. The second question is whether the plan approved by the district court is sufficient to satisfy the school board’s affirmative duty to disestablish the dual system. A geographical zoning plan for student assignments will sometimes satisfy this duty, depending on its practical effects and the feasible alternatives. But it will not satisfy the board’s duty to dismantle the dual system when it does not work. Henry v. Clarksdale Municipal Separate School District. To be satisfactory, a zoning plan must effectively achieve desegregation. When historic residential segregation creates housing patterns that militate against desegregation based on zoning, alternative methods must be explored, including pairing of schools: See Green v. County School Board, 1968, 391 U.S. 430, 442, n. 6, 88 S.Ct. 1689, 20 L. Ed.2d 716. Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554. An analysis of the plan adopted by the district court shows that it does not satisfy the board’s obligation to desegregate. While the plan does put some black students in formerly all white schools, it leaves over 45 percent of the district’s Negro students in all-black or virtually all-black schools. This continued segregation results from extensive residential segregation and boundary drawing to retain “the comfortable security of the old, established discriminatory pattern.” Monroe v. Board of Commissioners of City of Jackson, 1968, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733. For instance, the zone boundaries adopt the dividing line between Oxford and Hobson, a boundary tainted by racial gerrymandering. The appellees contend with respect to County Training that Hobson takes pride in its school and wants it to continue as it has been. Although this seems a misinterpretation of the testimony of" }, { "docid": "16383016", "title": "", "text": "22 (2d Cir. 1967), and Springfield School Committee v. Barksdale, 348 F.2d 261 (1st Cir. 1965); cf., Mapp v. Board of Education of Chattanooga, Tenn., 373 F.2d 75, 78 (6th Cir. 1967). Appellants petitioned the Supreme Court for certiorari in the first appeal and it was denied. Certiorari was also denied in Downs and Bell, supra. The denial of certiorari in the present case ought to constitute our opinion in the first appeal as the law of the case, but appellants contend that the law has been changed by the recent decisions of the Supreme Court in Green v. County School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Bd. of Educ. of Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Bd. of Comm’rs of City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). In our opinion, these three decicisions did not change any law applicable to our case and appellants’ reliance on them is misplaced. The gist of the holdings in these cases was\" that in desegregating a dual school system, a plan utilizing “freedom of choice” or a variant “free transfer” is not an end in itself and would be discarded where it did not bring about the desired result. On the other hand, our case involves the operation of a long-established unitary non-racial school system — just schools where Negro as well as white children may attend in the district of their residence. There is not an iota of evidence in this record where any of the plaintiffs or any of the class which they represent, was denied admission to a school in the district of his residence. It is the contention of appellants that the Board owed them a duty to bus white and Negro children away from the districts of their residences in order that the racial complexion would be balanced in each of the many public schools in Cincinnati. It is submitted that the Constitution imposes no such duty. Appellants are not the only" }, { "docid": "23302769", "title": "", "text": "of an acceptable desegregation plan. In 1964, under court order, the Clarksdale Municipal Separate School District of Mississippi redrew its attendance zones and adopted the geographic zoning system as the basis for desegregating its schools. In the fall of that year, not a single child in Clarksdale was enrolled in any school with members of the other race. Again, for the spring semester of the 1964-65 year, not a single child was enrolled in a school attended by children of the other race. When this case was tried in April 1965, 2800 Negro pupils attended the five “Negro” schools in Clarksdale and 2100 white children attended white schools along with two Negro girls who had transferred to the white high school to obtain a course, Latin, not available in the Negro high school. In Jefferson this Court considered freedom of choice plans in operation in Jackson, Biloxi, and Leake County, Mississippi, and in other parish and county school districts throughout this circuit. United States v. Jefferson County Board of Education, 5 Cir. 1966, 372 F.2d 836, adopted en banc, 380 F.2d 385, cert. denied sub nom. Caddo Parish School Board v. United States, 1967, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103. Much of what we said in our opinion in that ease applies to any school desegregation plan. We held that school officials have an “affirmative duty” to reorganize their schools into “an integrated, unitary school system in which there are no Negro schools and no white schools — just schools”. 380 F.2d at 389. We recognized that freedom-of-choice plans have “serious shortcomings” and suggested a detailed order to attempt to overcome some of the shortcomings. We pointed out, “The only school desegregation plan that meets constitutional standards is one that works.” (Original emphasis.) 372 F.2d at 847. Recently, the Supreme Court has underscored a school board’s “affirmative duty” today “to come forward with a plan that promises realistically to work, and promises realistically to work now”. (Original emphasis.) Green v. County School Board of New Kent County, Virginia, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d" }, { "docid": "23548734", "title": "", "text": "WISDOM, Circuit Judge: In Jefferson this Court read Brown to mean that school boards have an “affirmative duty” to reorganize their school districts into a “unitary, nonracial system” and to eradicate all vestiges of the dual system of segregated schools. In Jefferson we approved “freedom of choice” plans — if such plans are effective. We recognized, however, that at best freedom of choice plans have “serious shortcomings” and are appropriate only as “a means to the end” of complete disestablishment of the former system of de jure segregated schools. We pointed out, “The only school desegregation plan that meets constitutional standards is one that works”. (Original emphasis.) Recently the Supreme Court has made explicit “the affirmative duty” of school boards today “to come forward with a plan that promises realistically to work, and promises realistically to work now”. Green v. County School Board of New Kent County, Virginia, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716. In Green the Supreme Court found that within “the context of the state-imposed segregated pattern of long standing, the fact that in 1965 the Board opened the doors of the former ‘white’ school to Negro children and of the ‘Negro’ school to white children merely begins, not ends,. our inquiry whether the Board has taken steps adequate to abolish its dual, segregated system”. 391 U.S. at 437, 88 S.Ct. 1694, 20 L.Ed.2d 723. In determining whether the respondent school board met this end that Brotan I commanded, the Court found that the following circumstances were relevant. (1) The Board did not adopt a freedom-of-choice plan until some ten years after Brotan II was decided. (2) In three years of the Board’s operating the plan, not a single white student chose to attend the Negro School; 85% of the Negro children in the system still attended the all-Negro school. (3) The plan operated to burden the children and their parents with the responsibility Brown placed squarely on the School Board. The Supreme Court stated, “Of course, where other, more promising courses [than freedom of choice] are open to the board, that may indicate" }, { "docid": "18043921", "title": "", "text": "desegregation, and a year later in Bradley v. School Board of City of Richmond, Virginia, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965), the Court indicated that integration of teaching staffs is an essential step in the abolition of a dual school system. No other pronouncements were forthcoming from the Court for another three-year period until a trilogy of decisions announced in 1968 undertook to define “the thrust of Brown 11” in light of contemporary circumstances. Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Education of Gould School District, Arkansas, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Board of Commissioners of Jackson, Tennessee, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). It was held that “[sjchool boards ? * * operating state-compelled dual systems were * * * clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 437, 438, 88 S.Ct. 1689 (1968). Mere adoption of a freedom of choice plan of operation was ruled to be insufficient to meet this aff irmative duty; rather, the school boards must “come forward with a plan that promises realistically to work, and promises realistically to work now,” Id. at 439, 88 S.Ct. at 1694, meaning, apparently, that it must “work” by producing substantially integrated student bodies, faculties and programs in the schools. Although the Court rejected freedom of choice programs in all three of the school systems involved in the cases, the Court did not hold that choice plans are unconstitutional per se, but rather that such a plan is not acceptable if it has failed to eliminate the dual school system in fact, and if “there are reasonably available other ways * * * promising speedier and more effective conversion to a unitary, non-racial school system, * * *” Id. at 441, 88" }, { "docid": "18773210", "title": "", "text": "have been in 1975. In Green v. County School Board, 391 ; U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the Court for the first time spoke of the goal of school desegregation as the transition of a dual school system into a unitary one. The Green plaintiffs brought suit challenging the freedom of choice plan ‘ initiated in New Kent County, Virginia. ¡ New Kent County is a rural county in eastern Virginia. Its school system consisted of two schools, a white school serving grades 1-12 and a black school serving ' the same grades. School segregation had > existed, of course, in all parts of Virginia prior to Brown I, under both constitutional and statutory command. When the Green complaint was filed, pupil assignment in the county was governed by a pupil placement board created by state law. Green at 391 U.S. 432-3, 88 S.Ct. at 1691. Students were generally reassigned each school year to the school they had attended the prior year unless they sought reassignment by the placement board. After the Green suit was filed, the school board adopted a freedom of choice plan to desegregate their two schools. In finding the freedom of choice plan constitutionally inadequate as a remedy under the facts of that case, the Court first concluded that the county had established and operated a school system under state law like that forbidden by Brown —a “dual system, part ‘white’ and part ‘Negro’.” Green, supra, 391 U.S. at 435, 88 S.Ct. at 1692. Additionally, the county had delayed the dismantling of that dual system, and the freedom of choice plan had induced only 15% of Negro students to attend the formerly all white school. No white student had attended the all Negro school. Within that factual setting, the freedom of choice plan did not provide any meaningful assurance that the dual system would be promptly dismantled. The facts showed otherwise because, after three years of operation under the freedom of choice plan, 85% of the county’s black students still attended all black schools. Under the mandate of Brown “[sjchool boards ..." }, { "docid": "3294341", "title": "", "text": "the district court’s order resulted in the grant of only 8 out of 133 applications for transfer, plaintiffs sought further relief. It was denied, Wheeler v. Durham City Board of Education, 210 F.Supp. 839 (M.D.N.C.1962); but, on appeal, we reversed, declaring that the dual attendance zones were invalid and directing the preparation of a plan to end existing discrimination. An interim plan followed, which we approved in Wheeler v. Durham City Board of Education, 326 F.2d 759 (4 Cir. 1964), but we disapproved a purported permanent plan and suggested an unrestricted freedom of choice plan in Wheeler v. Durham City Board of Education, 346 F.2d 768 (4 Cir. 1965). A freedom of choice plan was adopted and approved by the district court in Wheeler v. Durham City Board of Education, 249 F.Supp. 145 (M.D.N.C.1966). We, too, approved it in Wheeler v. Durham City Board of Education, 363 F.2d 738 (4 Cir. 1966), although we also directed the employment and assignment of teachers on a non-racial basis. The litigation then entered a period of repose, with the expectation, at least on the part of some, that the freedom of choice plan would provide an adequate remedy. As with all other desegregation cases, however, jurisdiction of the district court continued to be retained. The second stage of the litigation followed' the Supreme Court’s decisions in Green v. School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). Green held that freedom of choice plans were unacceptable where other methods promised “speedier and more effective conversion to a unitary, non-racial school system.” 391 U.S. at 441, 88 S.Ct. at 1696. Alexander declared that the “obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.” 396 U.S. at 20, 90 S.Ct. at 29. After successfully challenging the freedom of choice plan for the Durham County schools, Nesbit v. Statesville City Board of Education, 418 F.2d 1040 (4 Cir." }, { "docid": "2225915", "title": "", "text": "imbalance which existed in the Cincinnati school system as a whole was not intentionally caused by the Board, the case was remanded for further findings with respect to claimed discrimination in specific schools and programs, and alleged harmful effects of the racial imbalance that did exist. New findings were made by the district court following remand, and the case was brought to this court once again. In affirming Deal II, Deal v. Board of Education, 419 F.2d 1387 (1969), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971), we upheld the findings that there was a high correlation between the distribution of Negro pupils throughout the school system and the general neighborhood residential patterns of the City; that there were topographical and man-made barriers which required irregular boundary lines for various attendance districts; and, specifically, that there was no evidence of racial discrimination by the Cincinnati Board in locating schools, assigning teachers and staff or in failing to furnish equal facilities to different schools. The “subsidiary findings” with respect to particular schools and programs were also upheld. The district court and this court disagreed with the contentions of the plaintiffs-appellants in Deal II that the law had been changed since Deal I by the Supreme Court decisions in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Education of the Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); and Monroe v. Board of Commissioners of the City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). These three cases were viewed as holding that a court may require a school board to discard as inadequate a plan based on “freedom of choice” or “free transfer” which has not effectively desegregated a dual school system, and thus as applying only to districts formerly having de jure segregation. 419 F.2d at 1396. The Deal case was brought as a class action on behalf of ninety-six named “minor citizens of the State of Ohio” and on behalf of" }, { "docid": "8277445", "title": "", "text": "These ideas are adopted by pupils, and the more so when they see them put into current effect in such instances as discriminatory treatment of black faculty members. The element of legal compulsion which lies behind state-mandated segregation strongly augments in fact the damage which ensues from racial isolation. Duty of Court Upon a finding of a Fourteenth Amendment violation it is the duty of a district court to intervene to “eliminate from the public schools all vestiges of state-imposed segregation.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275 (1971). “The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools.” Id., 26, 91 S. Ct. 1281. In its task the Court’s goal must be dismantling of the dual system and the operation of facilities identifiable not as black schools or white schools but “just schools.” Green v. County School Board of New Kent County, supra. Duty of Officials It is in 1971 accepted law that a school system formerly operated on a basis of compulsory racial segregation will not in every case be found in compliance with the Constitution if an assignment system, perhaps nondiscriminatory when viewed alone or in some other context, is put into use within its jurisdiction. Freedom of choice or residential zone plans will not in every case prove legally acceptable, and in fact they must be abandoned if in practice they fail to dismantle the dual system. Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed. 2d 716 (1968). The courts have not always so emphatically spelled out the extent of school authorities’ affirmative duty. Only a few years ago purportedly neutrally drawn zone lines or neutrally administered freedom of choice plans were accepted in fulfillment of the duty to desegregate. Gilliam v. School Board of City of Hopewell, 345 F.2d 325 (4th Cir. 1965); Bradley v. School Board of City of Richmond, 345 F.2d 310 (4th Cir.), rev’d. on" }, { "docid": "2215831", "title": "", "text": "Supreme Court at last overruled Plessy, declaring that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Brown I, 347 U.S. at 495, 74 S.Ct. 686. Just one year later, the Court mandated that federal courts and school authorities take affirmative steps to achieve desegre gation. Brown v. Bd. of Educ., 349 U.S. 294, 299, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (“Brown II ”) Specifically, federal courts were to retain jurisdiction over desegregation cases during the period of transition, wielding their equitable powers to supervise school boards’ efforts to effectuate integration. Id. at 300-01, 75 S.Ct. 753. One of the most important obligations of the federal courts was to ensure that school boards were proceeding in good faith to desegregate the public schools “with all deliberate speed.” Id. at 301, 75 S.Ct. 753. With these seminal decisions— Brown I and Brown II — the Supreme Court promised the citizens of this country, and particularly African-American children, school systems “in which all vestiges of enforced racial segregation have been eliminated.” Wright v. Council of the City of Emporia, 407 U.S. 451, 463, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). Notwithstanding the Court’s repeated admonition that segregation and its vestiges be eliminated “root and branch,” Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), many school boards— CMS included- — adopted “an all too familiar” response to the mandate of Brown II, interpreting “all deliberate speed” “as giving latitude to delay steps to desegregate.” Freeman v. Pitts, 503 U.S. 467, 472, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). And so, lower federal courts, with the guidance and oversight of the Supreme Court, began fashioning equitable remedies to contend with school board recalcitrance. For example, in Gixen, the Supreme Court held that a “freedom of choice” plan, which permitted students — regardless of race— to choose the school they would attend, was by itself insufficient to meet the mandate of Brown. 391 U.S. at 430, 88 S.Ct. 1689. In" }, { "docid": "3294342", "title": "", "text": "the expectation, at least on the part of some, that the freedom of choice plan would provide an adequate remedy. As with all other desegregation cases, however, jurisdiction of the district court continued to be retained. The second stage of the litigation followed' the Supreme Court’s decisions in Green v. School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). Green held that freedom of choice plans were unacceptable where other methods promised “speedier and more effective conversion to a unitary, non-racial school system.” 391 U.S. at 441, 88 S.Ct. at 1696. Alexander declared that the “obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.” 396 U.S. at 20, 90 S.Ct. at 29. After successfully challenging the freedom of choice plan for the Durham County schools, Nesbit v. Statesville City Board of Education, 418 F.2d 1040 (4 Cir. 1969), plaintiffs filed a motion for further relief with respect to the city schools. Urging that the freedom of choice plan had proved ineffective in desegregating the Durham city system, they argued that Green and Alexander mandated the adoption of a plan that would immediately establish a unitary school system. Plaintiffs prevailed in their contentions and on July 31, 1970, the district court ordered the adoption of a plan to create a unitary system through the use of newly-drawn geographical attendance zones. No appeal was taken from this order, or from the finding that the plan would provide a unitary system, and again the litigation lapsed into a period of relative quiescence. The district court, of course, retained jurisdiction. On July 27, 1972, the plaintiffs filed yet another motion for further relief, this time charging that the plan adopted in July, 1970 had not resulted in a unitary system. Although plaintiffs included a request for a revised plan in their plea for relief, their primary contention was that a true unitary system could be achieved" }, { "docid": "6017058", "title": "", "text": "interested persons or organizations, to bear the expense of the litigation or to obtain effective legal representation; or whenever he is satisfied that the institution of such litigation would jeopardize the personal safety, employment, or economic standing of such person or persons, their families, or their property.” . In this year, the Supreme Court handed down the landmark decision of Brown v. Board of Education (Brown I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Brown v. Board of Education (Brown II), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), the implementation decision followed one year later. The trial court found, and defendants do not dispute, that the School Board traditionally (until the filing of this suit) operated a segregated school system in which students and teachers were assigned to schools on the basis of race. . Rule 65(a) reads as follows: “(1) Notice. No preliminary injunction shall be issued without notice to the adverse party.” . The record contains inferences that the School Board is not particularly independent of the wishes of the Commission Council. The testimony of ex-Sehool Board member Dallas Picou is particularly revealing. He stated that the motion to transfer the property from the School Board to the Commission Council was rushed through with virtually no debate after Leander Perez, Sr., former president of the Council, told the School Board .the transfer was necessary to fight the integration suit. Picou testified to other instances in which the School Board followed Council suggestions without discussion. . The United States Supreme Court has cast doubt on the continued utility of freedom-of-choice plans to achieve the elimination of the dual school system in its recent important trilogy of decisions dealing with various desegregation plans. Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Education of Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968) ; Monroe v. Board of Commissioners of the City of Jackson, Tenn., 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). We" }, { "docid": "2880824", "title": "", "text": "is violative of the Fourteenth Amendment. As the Court observed in Brown I, supra, in the field of education “separate facilities are inherently unequal.” And in Brown II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), school districts which had previously operated “separate” schools were ordered to take the necessary action to eradicate this constitutional violation. The question now before us is whether the District has fulfilled its constitutional obligation to convert what admittedly was a segregated school system to a “unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board of New Kent County, 391 U.S. 430, 438, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Principal guidance from the Supreme Court as to this issue is to be found in the trilogy of cases decided in 1968. Green v. County School Board of New Kent County, supra; Raney. v. Board of Education of Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Board of Commissioners of City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). Each of the school districts there involved had adopted “freedom of choice” plans (or modifications thereof) for pupil assignment. In general the “freedom of choice” plans under consideration had not significantly altered attendance patterns which had been established by pre-Brown I state segregation laws. “Negro schools” continued to be attended by Negro students and “white schools” by white students. For example, in Green 85% of the Negro children continued to attend the all Negro school. Despite the School Board's contention in Green that it had “fully discharged its obligation by adopting a plan by which every student, regardless of race, may ‘freely' choose the school he will attend,” 391 U.S. at 437, 88 S.Ct. at 1693, the Court found that “freedom of choice” as applied to these three districts did not meet the constitutional requirements. The thrust of all three opinions is that the manner in which desegregation is to be achieved is subordinate to the effectiveness of any particular method or methods of achieving" } ]

[ { "docid": "12536885", "title": "", "text": "S.Ct. 562 (emphasis added; citations & footnote omitted). The defendants read Hazelwood to make “a crucial distinction between school-sponsored speech and school-tolerated speech” and to restrict Tinker to “school-tolerated speech, defined as ‘a student’s personal expression that happens to occur on the school premises, ...’” (Defs’ Mem. at 12 (quoting Hazelwood, 484 U.S. at 271, 108 S.Ct. 562).) Defendants further assert that “there is a clear overlap with curriculum-related student groups meeting under a closed forum equal access policy in that school sponsored speech includes any activity, inside or outside a traditional classroom setting, that is supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.” (Id. at 13.) At this point, this court declines to adopt defendants’ suggestion that by establishing a limited public or nonpublic forum for “curriculum-related” student clubs, a school thereby “lends its name and resources to the dissemination of student speech” and converts “school-tolerated” student expression within that forum under Tinker into “school-sponsored speech” under Hazelwood. Allowing a student group to meet on school premises during non-instructional time does not equate with publishing a school newspaper or producing a school play as part of the school’s language arts curriculum, and does not affirmatively promote particular student speech. Group meetings and group activities are a group function, a club function. Students, parents, and members of the public likely will not perceive student club and group activities as being a school function, or as “bearing the imprimatur of the school.” {Cf Deposition of Darline P. Robles, dated January 29, 1999, at 81:6-83:16.) Beyond Hazehvood, defendants’ analysis blurs the distinction between the power and discretion of school officials to select appropriate subject matter and materials to be taught in the school’s curriculum and the relatively limited power of school officials to restrict or proscribe student expression of student views. That educators may have “broad discretion to regulate expression in a curricular setting,” (Defs’ Mem. at 24), does not translate into broad discretion to regulate student expression in the context of student clubs and groups meeting on school premises during non-instructional time," } ]

[ { "docid": "12536886", "title": "", "text": "school premises during non-instructional time does not equate with publishing a school newspaper or producing a school play as part of the school’s language arts curriculum, and does not affirmatively promote particular student speech. Group meetings and group activities are a group function, a club function. Students, parents, and members of the public likely will not perceive student club and group activities as being a school function, or as “bearing the imprimatur of the school.” {Cf Deposition of Darline P. Robles, dated January 29, 1999, at 81:6-83:16.) Beyond Hazehvood, defendants’ analysis blurs the distinction between the power and discretion of school officials to select appropriate subject matter and materials to be taught in the school’s curriculum and the relatively limited power of school officials to restrict or proscribe student expression of student views. That educators may have “broad discretion to regulate expression in a curricular setting,” (Defs’ Mem. at 24), does not translate into broad discretion to regulate student expression in the context of student clubs and groups meeting on school premises during non-instructional time, or to discriminate against or exclude a particular student viewpoint from an existing forum allowing for “school-tolerated” student expression. Defendants’ designation of the permissible subject matter of the forum is properly measured by its reasonableness. Any effort by defendants to exclude a particular viewpoint or a particular speaker otherwise within that subject matter is not; such an exclusion calls for strict scrutiny. Forbes, 523 U.S. at 677, 118 S.Ct. 1633. In the context of public secondary schools, “the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline,” or to avoid “colliding with the rights of others,” the Court has said, “is not constitutionally permissible.” Tinker, 393 U.S. at 511, 513, 89 S.Ct. 733. (3) The Pending Motions for Summary Judgment Defendants thus fail to demonstrate their entitlement to judgment as a matter of law on the ground that “[e]ven assuming that plaintiffs’ gay-positive viewpoint has been excluded from curricular student groups,” the defendants “may regulate expression in a curricular" }, { "docid": "193904", "title": "", "text": "of Information and Distribution of Materials” in the Student Handbook and the policy regarding non-curriculum related literature in Superintendent McDowell’s letter to Plaintiffs’ Counsel against the plaintiffs until such time that the policies are revised in a manner consistent with this Memorandum and Order; (2) Enforcing any punishment upon any of the student plaintiffs for their actions in distributing the candy canes with religious messages; (3) Imposing a prior restraint upon the right of the student plaintiffs and the Club to distribute literature to fellow students during non-instructional time without first complying with the substantive and procedural safeguards outlined in this Memorandum and Order; (4) Prohibiting the student plaintiffs and the Club from distributing literature to fellow students during non-instructional time based on the content of the literature unless the school reasonably forecasts that the distribution will substantially disrupt or materially interfere with the operation of the school; (5) Punishing the student plaintiffs in any way for distributing literature to fellow students during non-instructional time where such distribution does not substantially disrupt or materially interfere with the operation of the school; (6) Otherwise infringing upon the plaintiffs’ statutory and Constitutional rights. It is So Ordered. . At oral argument, plaintiffs' counsel moved to substitute the \"City of Westfield” in place of \"Westfield Public Schools” as the properly named defendant in this case. The Court granted the motion pursuant to Fed.R.Civ.P. 15(a), (c)(3). . Westfield High’s policy regarding \"Clubs, Organizations and Activities\" (\"School Organization Policy”) reads: Students at Westfield High are offered many opportunities to participate in extracurricular activities. Students are encouraged to enhance their lives with participation in one of the clubs, organizations, or activities that are listed here. Announcements will be made over the public address system and on posters concerning the following extra-curricular offerings. Further details may be secured from the adviser, your homeroom teacher or guidance counselor. Clubs or organizations must be sanctioned or organized by the school and open to general membership. Verified Complaint (Doc. No. 1), Exhibit B, at 33 (Westfield Public Schools Parent-Student Handbook for Westfield High School 2002-2003) (emphasis added). . As will" }, { "docid": "193875", "title": "", "text": "school officials can reasonably restrict the speech of students and teachers.” Id. at 238. The district court also found that the school’s seasonal in-class parties “were school events intended to promote sharing and caring among students, to develop social skills, and to learn about talking in turn when in a large group.” Id. at 239. Consequently, the case at hand is completely distinguishable from Walz in two important ways. First, the in-class, school-sponsored holiday party in Walz, despite its festivities, concerned literature distribution during pure instructional time. Courts are more differential when schools shape the bounds of their curriculum, see Hazelwood, 484 U.S. at 271, 108 S.Ct. 562 (school-sponsored newspaper as part of journalism classes); Bethel, 478 U.S. at 683-86, 106 S.Ct. 3159 (school-sponsored assembly as part of educational program in self-government), Walz, 187 F.Supp.2d at 241 (school-sponsored holiday that was “meant to have an educational component” and was “highly structured, supervised, and regulated”), than when schools try to shape the bounds of private speech that occurs during non-instructional time between classes, during recess, in the cafeteria, on the playing field, or other designated “free time” during the school day, see Tinker, 393 U.S. at 512-13, 89 S.Ct. 733. Contrary to the spin the defendants put on the plaintiffs’ actions in this case, this case appears only to concern the distribution of religious messages during non-instructional time which amounts to private, school-tolerated speech. Secondly, the students rin Walz were highly immature and impressionable elementary school students “celebrating at an in-class party.” Walz, 187 F.Supp.2d at 240. The district court recognized the situation to be “different than high school students independently expressing political beliefs,” see id. (referring to Tinker); here, it is quite apparent that high school students independently expressed their religious beliefs. Again and again, the Supreme Court has professed its confidence that high school students have the capacity to understand that a school does “not endorse or support student speech that it merely permits on a nondiscriminatory basis.” Mergens, 496 U.S. at 247-52, 110 S.Ct. 2356. Viewing the evidence before the Court, it is apparent that the LIFE Club" }, { "docid": "21443512", "title": "", "text": "producing and directing a play did not constitute “speech” within the meaning of the First Amendment. (Boring’s brief, p. vi) We begin our discussion with the definition of curriculum: 3: all planned school activities including besides courses of study, organized play, athletics, dramatics, clubs, and homeroom program. Webster’s Third New International Dictionary, 1971, p. 557. Not only does Webster include dramatics within the definition of curriculum, the Supreme Court does the same. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), a case involving student speech in a school newspaper which was edited by the principal of a high school, the Court distinguished cases which require a school to tolerate student speech from those cases in which the school must affirmatively promote student speech. Although in different context, the reasoning of the Court as to what constitutes the school curriculum is equally applicable here. The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences [footnote omitted]. Hazelwood, 484 U.S. at 271, 108 S.Ct. at 570. It is plain that the play was curricular from the fact that it was supervised by a faculty member, Mrs. Boring; it was performed in interscholastic drama competitions; and the theater program at the high school was obviously intended to impart particular skills, such as acting, to student participants. These factors demonstrate beyond doubt that “students, parents, and members of the public might reasonably perceive [the production of the play Independence ] to bear the imprimatur of the school.” Hazelwood, 484 U.S. at 271, 108 S.Ct. at 570. So there is no difference between Webster’s common definition and that of Hazelwood. III. With these thoughts in mind, we are of opinion" }, { "docid": "193876", "title": "", "text": "the cafeteria, on the playing field, or other designated “free time” during the school day, see Tinker, 393 U.S. at 512-13, 89 S.Ct. 733. Contrary to the spin the defendants put on the plaintiffs’ actions in this case, this case appears only to concern the distribution of religious messages during non-instructional time which amounts to private, school-tolerated speech. Secondly, the students rin Walz were highly immature and impressionable elementary school students “celebrating at an in-class party.” Walz, 187 F.Supp.2d at 240. The district court recognized the situation to be “different than high school students independently expressing political beliefs,” see id. (referring to Tinker); here, it is quite apparent that high school students independently expressed their religious beliefs. Again and again, the Supreme Court has professed its confidence that high school students have the capacity to understand that a school does “not endorse or support student speech that it merely permits on a nondiscriminatory basis.” Mergens, 496 U.S. at 247-52, 110 S.Ct. 2356. Viewing the evidence before the Court, it is apparent that the LIFE Club is a student-initiated, student-led organization whose activities are unrelated to Westfield High’s curriculum or other, related activities; as such, distributing the religious messages attached to the candy canes constitutes an exercise of wholly private speech that merely happened to have occurred on school grounds and does not constitute school-sponsored speech. The Supreme Court’s holding in Hazelwood appears to have no more than a general bearing on this case. c., Establishment Clause Concerns Because the candy cane distributions are private expressive activities, the school has no basis for arguing that, by allowing the candy cane distribution, it is affirmatively promoting religion in violation of the Establishment Clause. At the heart of the school’s argument lies a widely held misconception of constitutional law that has infected our sometimes politically overcorrect society: The Establishment Clause does not apply to private action; it applies only to government action. See U.S. Const., Arndt. 1; Rivera, 721 F.Supp. at 1195. Because the LIFE Club’s activities are private, school-tolerated (rather than school-sponsored) expressive activities, the Establishment Clause only works against the defendants." }, { "docid": "193877", "title": "", "text": "is a student-initiated, student-led organization whose activities are unrelated to Westfield High’s curriculum or other, related activities; as such, distributing the religious messages attached to the candy canes constitutes an exercise of wholly private speech that merely happened to have occurred on school grounds and does not constitute school-sponsored speech. The Supreme Court’s holding in Hazelwood appears to have no more than a general bearing on this case. c., Establishment Clause Concerns Because the candy cane distributions are private expressive activities, the school has no basis for arguing that, by allowing the candy cane distribution, it is affirmatively promoting religion in violation of the Establishment Clause. At the heart of the school’s argument lies a widely held misconception of constitutional law that has infected our sometimes politically overcorrect society: The Establishment Clause does not apply to private action; it applies only to government action. See U.S. Const., Arndt. 1; Rivera, 721 F.Supp. at 1195. Because the LIFE Club’s activities are private, school-tolerated (rather than school-sponsored) expressive activities, the Establishment Clause only works against the defendants. See Rivera, 721 F.Supp. at 1195 (finding students’ distribution of non-student, religious newspaper to constitute private expressive action which implicated no Establishment Clause concerns); Johnston-Loehner v. O’Brien, 859 F.Supp. 575, 580 (M.D.Fla.1994) (“rather than preventing violation of the Establishment Clause, the [school] policy itself violates that clause”). The Court will now turn to the constitutional validity of the school’s policies as written. d. • Contenh-Based Restrictions The plaintiffs contend that West-field High’s speech policies are content-based restrictions that are unconstitutional, both facially and as applied. Because the Court already decided that the plaintiffs are substantially likely to prevail on their state law claim challenging the application of the school’s policies, the Court need not also consider the constitutionality of that application. See Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 157, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) (The “fundamental rule of judicial restraint” dictates that a court “will not reach constitutional questions in advance of the necessity of deciding them.”). To bring a successful facial challenge to the" }, { "docid": "2810492", "title": "", "text": "the Good News Club was “not a school sponsored activity.” JA 215. Nor do the materials at issue here resemble the pre-game invocation that was held to be school-sponsored speech in Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). There, past practice clothed the speech with the mantle of school approval, since the pre-game invocation had previously been delivered by the school’s student chaplain. Id. at 309, 120 S.Ct. 2266. In addition, the speech was incorporated into an official school-sponsored event (a high school football game) that was staged on school property, and the speech was broadcast on the school’s public address system. Id. at 307-08, 120 S.Ct. 2266. Moreover, this event was one that played a central part in the social life of the school and that some students (football team and band members) were required to attend. Id. at 311-12, 120 S.Ct. 2266. The school also regulated the identity of the speaker. Id. at 303-04, 120 S.Ct. 2266. Only one student could speak, and the prescribed method of selecting the speaker — an election — insured that minority views would probably never be expressed. Id. Finally, the school regulated the content of the speech, prescribing that it had to be an “invocation,” a type of address that naturally suggests a prayer, and that it could not be denominational or proselytizing. Id. Not one of these features is present in the case at hand. While this case is unlike Hazehoood and Santa Fe, it is comparable to cases in which public educational institutions have properly facilitated speech by a broad array of private groups. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (use of school facilities by community groups); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (same); Rosenberger, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (university program subsidizing broad array of student activities). Like those cases, this case involves private, not school-sponsored, speech. IV. Stafford" }, { "docid": "193827", "title": "", "text": "school bulletin, subject to the same pre-approval process required of all other student organizations. The school also allows the Club to put up posters announcing meetings and activities on approved locations within the school. If the Club wishes to use the school auditorium, its members must complete a building use form and submit it to the administration in the same way as all other student organizations. The school also permits the Club to meet at the flagpole on school grounds before the start of each school day to conduct a morning prayer. As the plaintiffs describe it, the LIFE Club is a student-initiated, student-led Christian club that is unrelated to the school’s curriculum. The LIFE Club’s members, all students at Westfield High, congregate together the first and third Monday of every month, where they engage in Bible study discussion, prayer, and plan various service projects. Club members participate in service projects by assisting local soup kitchens, clothing drives, and food drives. Presumably, participation in these service activities occurs outside school grounds. C. School Speech Policies Every year, the Westfield Public Schools distribute to students a parent-student handbook containing, among other things, school policies. See Verified Complaint (Doc. No. 1), Exhibit B, at 23 (Westfield Public Schools Parent-Student Handbook for Westfield High School 2002-2003) (“Student Handbook”). During all times relevant to this lawsuit, the following policies were in effect. The policy regarding “Freedom of Speech, Assembly or Congregation” (“Free Speech Policy”) reads: The freedoms of speech and the right to assemble are two principles upon which this country is based. These freedoms are subject to the limits of obscenity, defamation, fighting words, incitement, or disruption as defined by the Massachusetts Department of Education. Responsible speech will be allowed in the proper location at the proper time, so as not to stop other people from entering classes, distributing literature during classes, or hold a demonstration, so that it interferes with classes or homerooms in session. The use of symbolic expressions of pubhshing/distributing of material is subject to the same limitations as listed for freedom of speech. Permission to assemble cannot be allowed" }, { "docid": "9365212", "title": "", "text": "granted “substantial deference as to what speech is appropriate.” LaVine v. Blaine School District, 257 F.3d 981, 988 (9th Cir.2001). “ ‘The daily administration of public education is committed to school officials.’ ” Id., quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). “ ‘The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board,’ rather than with the federal courts.” Hazelwood, 484 U.S. at 267, 108 S.Ct. 562, quoting Fraser, 478 U.S. at 683, 106 S.Ct. 3159 (internal citations omitted). In order to suppress speech that is not constitutionally protected, the court must justify its decision by showing “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” Tinker, 393 U.S. at 514, 89 S.Ct. 733. This Court recently reviewed the state and federal free speech rights of high school students, and underscored the importance of students’ freedom of expression. Westfield High School L.I.F.E. Club v. City of Westfield, 249 F.Supp.2d 98, 2003 WL 1339052, *10 (D.Mass.2003). However, the potential for disruption or disorder to the students of the Northwest School was greater than merely the School’s negative reaction to an unpopular political viewpoint. Id., citing Tinker, 393 U.S. at 513, 89 S.Ct. 733. This case is unlike Tinker. It did not involve “silent, passive, expression of opinion, unaccompanied by any disorder or disturbance.” Tinker, 393 U.S. at 508, 89 S.Ct. 733. In keeping with the School official’s testimony regarding concern for Michael’s and other students safety, I find that the matter was dealt with in an expeditious, but not hasty, manner. Michael created the drawing in school on April 5, 2000, which was turned over to the principal, Mrs. Mulkern. The following day at school, April 6, 2000, Michael repeatedly wrote the phrases “I want to die” and “I hate life” on a sheet of paper, which was also given to Mrs. Mulkern. Mrs. Mul-kern, with both of Michael’s compositions and knowledge of his disciplinary record, confronted Michael on Friday, April 7," }, { "docid": "21443511", "title": "", "text": "holding that the plaintiffs selection and production of the play Independence as part of the school’s curriculum was not protected speech under the First Amendment. We review a dismissal for failure to state a claim de novo, drawing all reasonable inferences in favor of the plaintiff and accepting the allegations that are stated in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.), cert. denied, 510 U.S. 828, 114 S.Ct. 93, 126 L.Ed.2d 60 (1993). II. The district court held that the play was a part of the school curriculum and: Since plaintiff has not engaged in protected speech, her transfer in retaliation for the play’s production did not violate Constitutional standards. (A.71) With this holding, the plaintiff takes issue on appeal as follows: Whether the district court erred in holding that plaintiffs act of selecting, producing and directing a play did not constitute “speech” within the meaning of the First Amendment. (Boring’s brief, p. vi) We begin our discussion with the definition of curriculum: 3: all planned school activities including besides courses of study, organized play, athletics, dramatics, clubs, and homeroom program. Webster’s Third New International Dictionary, 1971, p. 557. Not only does Webster include dramatics within the definition of curriculum, the Supreme Court does the same. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), a case involving student speech in a school newspaper which was edited by the principal of a high school, the Court distinguished cases which require a school to tolerate student speech from those cases in which the school must affirmatively promote student speech. Although in different context, the reasoning of the Court as to what constitutes the school curriculum is equally applicable here. The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might" }, { "docid": "193912", "title": "", "text": "States as amicus curiae has suggested, if the Court were to accept the school’s proposition that LIFE Club is a school-sponsored, curriculum-related group, then the school would be in flagrant violation of forty years worth of Supreme Court precedent barring school-sponsored prayer and devotional activities. See, e.g., Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (holding daily classroom prayer unconstitutional); Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (holding daily bible reading unconstitutional). Ironically, defendants' counsel at oral argument suggested establishment of religion was the very result the school officials sought to avoid in the first place when they refused to grant the LIFE Club permission to pass out the candy canes with religious message. Cf. Johnston-Loehner v. O’Brien, 859 F.Supp. 575, 580 (M.D.Fla.1994) (\"Indeed, rather than preventing violation of the Establishment Clause, the policy itself violates that clause.”). . The Supreme Court has found that granting access to school facilities during non-instructional time to a religious group under the Equal Access Act does not violate the Establishment Clause. See Mergens, 496 U.S. 226, 110 S.Ct. 2356. . Westfield High's 'Tear of a mistaken inference of endorsement is largely self-imposed, because the school itself has control over any impressions it gives its students.\" Mergens, 496 U.S. at 251, 110 S.Ct. 2356. To eliminate all doubt, however unreasonable, the school could make clear in its Student Handbook that it does not endorse the views of students simply by allowing them to disseminate information or the views of student organizations simply by officially recognizing them or allowing them to conduct expressive activities on school premises. See id. (\"students will reasonably understand that the school’s official recognition of the club evinces neutrality toward, rather than endorsement of, religious speech.”) . Unfortunately, the language used in the jurisprudence and in the parties' arguments can be confusing. Content-based restrictions come in various types, including those that restrict certain subject-matter and those that restrict certain viewpoints. Courts and parties often refer to subject-matter restrictions as simply content-based restrictions. To al leviate confusion," }, { "docid": "22187428", "title": "", "text": "this case and Widmar is not that college and high school students have varying capacities to perceive the subtle differences between toleration and endorsement, but rather that the University of Missouri and Westside actually choose to define their respective missions in different ways. That high schools tend to emphasize student autonomy less than universities may suggest that high school administrators tend to perceive a difference in the maturity of secondary and university students. But the school’s behavior, not the purported immaturity of high school students, is dispositive. If Westside stood apart from its club program and expressed the view, endorsed by Congress through its passage of the Act, that high school stu dents are capable of engaging in wide-ranging discussion of sensitive and controversial speech, the inclusion of religious groups in Westside’s forum would confirm the school’s commitment to nondiscrimination. Here, though, the Act requires the school to permit religious speech in a forum explicitly designed to advance the school’s interest in shaping the character of its students. The comprehensiveness of the access afforded by the Act further highlights the Establishment Clause dangers posed by the Act’s application to fora such as Westside’s. The Court holds that “[o]fficial recognition allows student clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair.” Ante, at 247 (citing App. 434-435). Students would be alerted to the meetings of the religion club over the public address system; they would see religion club material posted on the official school bulletin board and club notices in the school newspaper; they would be recruited to join the religion club at the school-sponsored Club Fair. If a school has a variety of ideological clubs, as in Widmar, I agree with the plurality that a student is likely to understand that “a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.” Ante, at 250. When a school has a religion club but no other political or ideological organizations, however, that relatively fine distinction" }, { "docid": "193826", "title": "", "text": "Daley, the principal of Westfield High (“Principal Daley”) (collectively, the “defendants”). The United States of America (“United States”) and the American Civil Liberties Union of Massachusetts (“ACLU”) have filed briefs as amici curiae. See United States Amicus Curiae Brief (Doc. No. 28); ACLU Amicus Curiae Brief (Doc. No. 36). B. The LIFE Club Sometime during the 2000-2001 school year, a group of students at Westfield High approached Principal Daley about organizing a Bible club on school premises. Principal Daley was amenable to the idea, provided that the group secure an adult sponsor to be present at the Club’s activities. The school required all student orga nizations to have adult sponsors. The LIFE Club began when Craig Spooner, a teacher at Westfield High, volunteered to serve as the Club’s adult sponsor. The LIFE Club meets in Mr. Spooner’s classroom after school. Principal Daley attests that such an arrangement is “standard practice” for student organizations at the school. In addition to accommodating meetings, the school permits the LIFE Club to announce its after-school activities in the daily school bulletin, subject to the same pre-approval process required of all other student organizations. The school also allows the Club to put up posters announcing meetings and activities on approved locations within the school. If the Club wishes to use the school auditorium, its members must complete a building use form and submit it to the administration in the same way as all other student organizations. The school also permits the Club to meet at the flagpole on school grounds before the start of each school day to conduct a morning prayer. As the plaintiffs describe it, the LIFE Club is a student-initiated, student-led Christian club that is unrelated to the school’s curriculum. The LIFE Club’s members, all students at Westfield High, congregate together the first and third Monday of every month, where they engage in Bible study discussion, prayer, and plan various service projects. Club members participate in service projects by assisting local soup kitchens, clothing drives, and food drives. Presumably, participation in these service activities occurs outside school grounds. C. School Speech Policies" }, { "docid": "193825", "title": "", "text": "MEMORANDUM AND ORDER FREEDMAN, Senior District Judge. I. INTRODUCTION Before the Court is the plaintiffs’ motion for a preliminary injunction. The plaintiffs request the Court enjoin the defendants from enforcing allegedly unconstitutional school speech policies, from imposing in-school suspensions on the plaintiffs, and from prohibiting the plaintiffs from distributing religious literature to other students during non-instructional time. See Plaintiffs’ Motion for Preliminary Injunction (Doc. No. 7). The defendants oppose the motion. See Defendants’ Opposition (Doc. No. 26). II. FACTUAL BACKGROUND The following facts derive from the pleadings and various affidavits and exhibits filed in support of, and in opposition to, the plaintiffs’ motion for a preliminary injunction. A. The Parties The plaintiffs are present and former Westfield High School (“Westfield High” or “school”) students who are or were members of the Westfield High School Life and Insight For Eternity Club (“LIFE Club” or “Club”), the students’ parents, and the LIFE Club itself. The defendants are the City of Westfield, Dr. Thomas Y. McDowell, the superintendent of the Westfield Public Schools (“Superintendent McDowell”), and Thomas W. Daley, the principal of Westfield High (“Principal Daley”) (collectively, the “defendants”). The United States of America (“United States”) and the American Civil Liberties Union of Massachusetts (“ACLU”) have filed briefs as amici curiae. See United States Amicus Curiae Brief (Doc. No. 28); ACLU Amicus Curiae Brief (Doc. No. 36). B. The LIFE Club Sometime during the 2000-2001 school year, a group of students at Westfield High approached Principal Daley about organizing a Bible club on school premises. Principal Daley was amenable to the idea, provided that the group secure an adult sponsor to be present at the Club’s activities. The school required all student orga nizations to have adult sponsors. The LIFE Club began when Craig Spooner, a teacher at Westfield High, volunteered to serve as the Club’s adult sponsor. The LIFE Club meets in Mr. Spooner’s classroom after school. Principal Daley attests that such an arrangement is “standard practice” for student organizations at the school. In addition to accommodating meetings, the school permits the LIFE Club to announce its after-school activities in the daily" }, { "docid": "12536810", "title": "", "text": "MEMORANDUM OPINION AND ORDER JENKINS, Senior District Judge. On February 20, 1996, the Board of Education of the Salt Lake City School District adopted a formal written policy concerning student organizations: The Board of Education of Salt Lake City School District desires to promote and advance curriculum related student clubs. However, the Board does not allow or permit student groups or organizations not directly related to the curriculum to organize or meet on school property. It is the express decision of the Board of Education of Salt Lake City School District not to allow a “limited open forum” as that is defined by the Federal Equal Access Act, 20 U.S.C. § 4071. (Pl.Ex. 112, annexed to Second Declaration of David S. Buckel, filed April 6, 1999 (dkt. no. 118).) This written policy has been implemented by school administrators through a process that requires prior review and approval of every student club or group that seeks to meet on school premises during non-instructional time and to use school facilities to promote its activities. Plaintiffs complain that as a “non-curricular” group, they have been denied the opportunity to meet on school premises at East High School during non-instructional time (e.g., during the lunch hour), and have been denied access to facilities such as bulletin boards, the school PA system, and closed circuit television to promote their organization and its activities, while other purportedly “curriculum related” groups have continued to meet, conduct activities and use school facilities. Plaintiffs’ group has been excluded from “Club Rush” and “Spring Fest” and the school yearbook at East High School. (Second Amended Complaint, filed February 11, 1999 (dkt. no. 102), at 12-13 ¶ 34.) Plaintiffs seek access to school facilities to better reach students who need support, to promote awareness and acceptance, and to feel like “citizens of equal status.” On March 4, 1999, both plaintiffs and defendants, asserting an absence of disputed material facts, filed motions for summary judgment. On April 6, 1999, at the time they filed their response to defendants’ motion, plaintiffs filed an additional cross-motion for partial summary judgment on their First Amendment" }, { "docid": "193905", "title": "", "text": "with the operation of the school; (6) Otherwise infringing upon the plaintiffs’ statutory and Constitutional rights. It is So Ordered. . At oral argument, plaintiffs' counsel moved to substitute the \"City of Westfield” in place of \"Westfield Public Schools” as the properly named defendant in this case. The Court granted the motion pursuant to Fed.R.Civ.P. 15(a), (c)(3). . Westfield High’s policy regarding \"Clubs, Organizations and Activities\" (\"School Organization Policy”) reads: Students at Westfield High are offered many opportunities to participate in extracurricular activities. Students are encouraged to enhance their lives with participation in one of the clubs, organizations, or activities that are listed here. Announcements will be made over the public address system and on posters concerning the following extra-curricular offerings. Further details may be secured from the adviser, your homeroom teacher or guidance counselor. Clubs or organizations must be sanctioned or organized by the school and open to general membership. Verified Complaint (Doc. No. 1), Exhibit B, at 33 (Westfield Public Schools Parent-Student Handbook for Westfield High School 2002-2003) (emphasis added). . As will become apparent, the LIFE Club’s relationship to the school is a contentious issue in this litigation, since that relationship governs the level of censorship the school may have over the group’s speech activities. .Curiously, in their answers to the plaintiffs' verified complaint, the defendants \"neither admit nor deny the allegations [that the speech policies were in effect during all times relevant to this lawsuit] ... but call upon the Plaintiffs to prove the same.\" See School's and Superintendent's Answer (Doc. No. 22), at ¶¶ 44, 48, 56; Principal's Answer (Doc. No. 24), at ¶¶ 44, 48, 56. Such averments are impermissible under the rules of responsive pleading. See Fed.RXiv.P. 8(b) (a party shall \"admit or deny\" or state that the party is \"without knowledge or information sufficient to form a belief as the truth of an averment”). Thus, the Court will treat the defendants’ failures to deny the plaintiffs' averments as admissions. See Fed.R.Civ.P. 8(d). . It is unclear as to what \"Section J” refers. . There is no indication of when and in what" }, { "docid": "2810491", "title": "", "text": "high school newspaper was held to represent school-sponsored speech where: the paper was the official school newspaper; it was printed with school funds and produced by students in a journalism class that was part of the school curriculum; the students’ work was reviewed and graded by the teacher; a faculty member closely supervised all aspects of the paper, including the selection of the editors, the number of pages in each edition, the assignment of stories, and the editing of everything that appeared in the paper, including letters to editor; and the entire paper was reviewed by the principal before publication. See Hazelwood, 484 U.S. at 262, 268-69,108 S.Ct. 562. Here, by contrast, the Good News Club flyers and permission slips were obviously not official Stafford documents. On the contrary, Stafford had no hand in writing the materials in question and did not pay for them. Nothing in the materials suggested that Stafford had any role in their production or approved of their content. Indeed, the Good News Club flyer contained an express disclaimer stating that the Good News Club was “not a school sponsored activity.” JA 215. Nor do the materials at issue here resemble the pre-game invocation that was held to be school-sponsored speech in Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). There, past practice clothed the speech with the mantle of school approval, since the pre-game invocation had previously been delivered by the school’s student chaplain. Id. at 309, 120 S.Ct. 2266. In addition, the speech was incorporated into an official school-sponsored event (a high school football game) that was staged on school property, and the speech was broadcast on the school’s public address system. Id. at 307-08, 120 S.Ct. 2266. Moreover, this event was one that played a central part in the social life of the school and that some students (football team and band members) were required to attend. Id. at 311-12, 120 S.Ct. 2266. The school also regulated the identity of the speaker. Id. at 303-04, 120 S.Ct. 2266. Only one student could speak, and" }, { "docid": "2762650", "title": "", "text": "fact that “the school ha[d] no valid Establishment Clause interest” in precluding religious speech in that context. Id. at 113, 121 S.Ct. 2093. The censored religious activities took place outside school hours, and participation was purely voluntary. Id. at 115-16, 121 S.Ct. 2093. The Court carefully distinguished its decision in Lee, recognizing that Lee had “concluded that attendance at the graduation exercise was obligatory.” Id. at 115, 121 S.Ct. 2093. “Here, where the school facilities are being used for a nonschool function and there is no government sponsorship of the Club’s activities, Lee is inapposite.” Id. at 116,121 S.Ct. 2093. The setting of Plaintiffs case is the same as that in Lee. The graduation ceremony was a school-sponsored function that all graduating seniors could be expected to attend. Unlike in Good News Club, where circumstances made the “consideration of coercive pressure and perceptions of endorsement” essentially irrelevant, 533 U.S. at 120-21, 121 S.Ct. 2093 (Scalia, J., concurring) (citation omitted), here those issues are in the forefront. See also Prince v. Jacoby, 303 F.3d 1074, 1095 (9th Cir.2002) (Hall, J., concurring) (distinguishing graduation ceremonies from club meetings at which attendance is voluntary). In short, the two situations are materially different. The after-hours meetings in Good News Club lacked the imprimatur of the school, whereas the essence of graduation is to place the school’s imprimatur on the ceremony — including the student speakers that the school selected. Good News Club involved only the voluntary participation of some students, with prior parental permission, whereas the essence of high school graduation is the participation of all, as a captive audience. Good News Club does not change the result that Cole demands. CONCLUSION Cole controls. Good News Club did not undermine Cole. There is no room in Cole for a public school to disclaim sectarian, proselytizing religious speech at a graduation ceremony. AFFIRMED. . There are a few minor differences, but none is material. For example, Plaintiff here gave his speech with Defendants’ redactions, while the plaintiff in Cole refused to deliver a speech at all. However, the difference in the plaintiffs' reactions to the" }, { "docid": "193862", "title": "", "text": "who delivered speech laden with sexual innuendo at high school assembly); Hazelwood, 484 U.S. at 266, 108 S.Ct. 562. The Supreme Court “has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Tinker, 393 U.S. at 507, 89 S.Ct. 733. Thus, the Court must demarcate the scope of Sharon Sitter’s constitutional rights “in light of the special characteristics” of the Westfield High School environment. Id. at 506, 89 S.Ct. 733. The school defends its speech policies on the premise that the LIFE Club is “school-sponsored,” a status which would require this Court to conduct forum analysis and apply the appropriate level of scrutiny relevant to the particular forum. See Hazelwood, 484 U.S. at 273, 108 S.Ct. 562 (finding school-sponsored newspaper to be limited public forum, thus allowing school to regulate contents of newspaper in ways “reasonably related to pedagogical concerns”). Compare, e.g., Rivera, 721 F.Supp. at 1193 (“The holding in Tinker did not depend upon a finding that the school was a public forum.”). Any student group meeting on school premises may arguably be characterized as school-sponsored, but the Court must look beyond carelessly strewn labels and examine the substance of the relationship between the LIFE Club’s activities and the school. In Hazelwood, the Supreme Court examined “the extent to which educators may exercise editorial control over the contents of a high school newspaper produced as part of the school’s journalism curriculum.” Hazelwood, 484 U.S. at 262, 108 S.Ct. 562. In that case, a school principal denied students permission to publish two articles in the school newspaper. One article dealt with the topic of student pregnancy within the school; the principal objected because the article insufficiently disguised the identity of the pregnant students in the article. See id. at 263, 108 S.Ct. 562. The other article dealt with the topic of divorce in which an identified student made negative comments regarding his parents’ divorce; the principal objected because the article did not include a response from the identifiable parent, who" }, { "docid": "12536833", "title": "", "text": "Reply Mem.”), at 3-6.) Following the Assistant Superintendent’s denial of the Rainbow Club’s application, the defendants reiterated their position that plaintiffs’ motion was untimely and that the Rainbow Club’s application falls outside the scope of this case. (Defs’ Resp. to Supp. Mem. at 1-2.) The Second Amended Complaint makes no explicit reference to the proposed Rainbow Club, or to any effort by plaintiffs to gain District approval for a “curriculum related” group under any name. The East High Gay/Straight Alliance finds consistent treatment in plaintiffs’ pleadings and moving papers as an unabashedly “non-eurricular” organization. Beyond that, the Second Amended Complaint refers by name only to the Young Democrats at West High School. However, the cross-motion for summary judgment does point to language in Paragraph 56 the Second Amended Complaint addressing plaintiffs’ First Amendment claims: 56. Defendants have violated and are continuing to violate Plaintiffs’ freedoms of expression and association under the First and Fourteenth Amendments to the United States Constitution and Plaintiffs’ rights to due process of law and equal protection of the laws under the Fourteenth Amendment to the United States Constitution in several ways: by prohibiting the Alliance from meeting at the limited public forum created and maintained by Defendants at the public secondary schools within the District; by providing an opportunity for one or more noncurriculum related student groups to meet during noninstructional time on the premises of public secondary schools in the District, while denying equal access to and discriminating against students who wish to conduct other meetings, including plaintiffs, on the basis of the content of the speech of, and viewpoints expressed by, those other groups and their members; by imper-missibly discriminating on the basis of content and viewpoint, even within the activities of approved “curriculum-related” clubs; by adopting policies and rules that dictate that no student group activity can include a gay-positive viewpoint; by failing to establish and apply clear and consistent, content- and viewpoint- neutral criteria for determining which student groups will be allowed to use the limited public forum Defendants have created; and by affording themselves unlimited discretion, applying vague standards, and" } ]

[ { "docid": "5563892", "title": "", "text": "Robinson’s claim under the prejudice prong and not resolving the performance prong, is itself consistent with United States Supreme Court precedent. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (\"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); Grayson v. Thompson, 257 F.3d 1194, 1225 (11th Cir.2001) (\"In this case, we need not decide whether counsel’s performance was in fact deficient because Grayson so clearly fails to satisfy the prejudice prong of the Sixth Amendment analysis.\"), cert. denied, -U.S. -, 122 S.Ct. 2674, 153 L.Ed.2d 846 (2002). . See Cone, 122 S.Ct. at 1851-52 (stating that \"[t]he aspects of counsel’s performance challenged [in this capital case, including] ... the failure to adduce mitigating evidence ... are plainly of the same ilk as other specific attorney errors we have held subject to Strickland 's performance and prejudice components,” and citing as examples Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), and Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)). . See also Clisby v. Alabama, 26 F.3d 1054, 1056 (11th Cir.1994) (“Petitioners alleging ineffective assistance in death penalty cases bear the burden of showing prejudice: 'the question is whether there is a reasonable probability that, absent the errors, the sen-tencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.' \") (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). . The only United States Supreme Court decisions that inform this conclusion are those existing at the time the Florida Supreme Court decided this case. However, we note that even since then there is no decision in which the United States Supreme Court, when faced with materially indistinguishable facts, reached a decision different from that reached by the Florida Supreme Court in this case. See Breedlove v. Moore, 279 F.3d 952, 962-63 (11th Cir.2002) (reviewing under AEDPA a 1991 decision of the Florida Supreme" } ]

[ { "docid": "1846863", "title": "", "text": "district court from holding an evidentiary hearing, which included documentary evidence as well as live testimony, about a five-year-old case. Nonetheless, as the State correctly observes, the state habeas court’s factual determinations, including its credibility findings, are entitled to a presumption of correctness under § 2254(e)(1), regardless of whether the state court held a full and fair hearing. See Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir.2001) (“[A] full and fair hearing is not a precondition to according § 2254(e)(l)’s presumption of correctness to state habeas court findings of fact nor to applying § 2254(d)’s standards of review.”). However, after reviewing the record on appeal and the district court’s thorough and considered opinion, we conclude that the district court afforded proper deference to the state court’s decisions and rulings: although critical of the state court proceedings, the district court specifically found that “[a]ny presumption of correctness of determinations made by the state court relevant to Richards’s ineffective-assistance-of-counsel ground has been rebutted by clear and convincing evidence.” Richards, 578 F.Supp.2d at 854; see also Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“A federal court can disagree with a state court’s credibility determination and, when guided by AED- PA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.”). B. Ineffective Assistance of Counsel 1. Applicable law The Supreme Court set out the governing principles of ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To succeed on a charge of ineffective assistance of counsel in state court, a petitioner must satisfy both prongs of Strickland’s two-part test by demonstrating that (1) counsel’s performance was deficient and (2) counsel’s deficient performance caused actual prejudice to the petitioner’s defense. Id. at 687, 104 S.Ct. 2052. To prove deficient performance, “a petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness,” Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir.2006), under the then “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. In evaluating" }, { "docid": "11165287", "title": "", "text": "of a different result must be substantial.... ” Id. at 792 (emphasis added). Thus, “[i]n assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel act ed differently.” Id. at 791. “Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different.” Id. at 792 (quoting Strickland, 466 U.S. at 696, 104 S.Ct. 2052). “This does not require a showing that counsel’s actions ‘more likely than not altered the outcome,’ but the difference between Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’ ” Id. (quoting Strickland, 466 U.S. at 693, 697, 104 S.Ct. 2052). 2. Strickland Review Under AEDPA As noted above, because the KCOA rejected Mr. Frost’s ineffective assistance claim on the merits, we must evaluate this claim through AEDPA’s deferential lens. See 28 U.S.C. § 2254(d)(1). We therefore may grant relief only if Mr. Frost demonstrates that the KCOA’s decision was “contrary to, or involved an unreasonable application of, clearly established” Supreme Court law. Id.; see also Richter, 131 S.Ct. at 783-84. “It is past question that the rule set forth in Strickland qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States.” Williams, 529 U.S. at 391, 120 S.Ct. 1495 (opinion of Stevens, J.). Thus, “[i]f a state court were to reject a prisoner’s claim of ineffective assistance of counsel on the grounds that [he] had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different” absent counsel’s deficient performance, that decision would be contrary to clearly established Supreme Court precedent because the prisoner “need only demonstrate a ‘reasonable probability that ... the result of the proceeding would have been different.’ ” Id. at 405-06, 120 S.Ct. 1495 (opinion of O’Connor, J.) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052) (emphasis added); accord Richter, 131 S.Ct. at 792 (Strickland does not “require a showing" }, { "docid": "2130582", "title": "", "text": "first to the district court’s conclusion that, under § 2254(d)(1), the MAR court unreasonably applied the Supreme Court’s precedent in Strickland. We then address its finding that the MAR court based its decision on an unreasonable factual determination under § 2254(d)(2). Finally, we turn to Moore’s cross-appeal. A. 1. Where a habeas corpus petition alleges ineffective assistance of counsel, we review the claim not only through the strictures of the AEDPA but also “through the additional lens of Strickland and its progeny.” Richardson, 668 F.3d at 139. The AEDPA and Strickland provide “dual and overlapping” standards which we apply “simultaneously rather than sequentially.” Id. (citing Richter, 131 S.Ct. at 788). This “doubly deferential” review requires the court to determine “not whether counsel’s actions were reasonable,” but “whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 131 S.Ct. at 788. Strickland sets forth a two-part standard: First, the petitioner must show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688,104 S.Ct. 2052. When determining whether counsel’s behavior was deficient, a court “must indulge a strong presumption that counsel’s representation was within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Second, the petitioner must also show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Two recent Supreme Court cases — Richter, 131 S.Ct. 770, and Cullen v. Pinholster, — U.S. —, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) — clarify the high bar the AEDPA sets for habeas petitioners. In both cases, the Court emphasized that when state prisoners present ineffective assistance of counsel claims under the AEDPA, the “pivotal question is whether the state court’s application of the Strickland standard was unreasonable.” Richter, 131 S.Ct. at 785; Pinholster, 131 S.Ct. at 1410-11. Determining whether the state court unreasonably applied Strickland “is different from asking whether defense counsel’s performance fell below Strickland’s standard,” in part because “ ‘an unreasonable application of federal law is different from an incorrect application of federal" }, { "docid": "23311530", "title": "", "text": "counsel’s performance was not deficient and, further, defer to the attorney’s decision in how to best represent a client.’ ” Id. (second alteration in original) (quoting Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th Cir.2009)). As the Supreme Court has explained, “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). Thus, our review of ineffective-assistance claims in habeas applications under § 2254 is “doubly deferential.” Id. “[T]he question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 131 S.Ct. at 788. The second prong of Strickland — prejudice — requires an applicant to show “that there is a reasonable probability that, but for the counsel’s error, ‘the result of the proceeding would have been different.’ ” Challoner, 583 F.3d at 749 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Reasonable probability is more than mere speculation, and an applicant must show more than “some conceivable effect on the outcome of the proceeding.” Turrentine v. Mullin, 390 F.3d 1181, 1205 (10th Cir.2004) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052) (internal quotation marks omitted). Rather, “ ‘reasonable probability is a probability sufficient to undermine confidence in the outcome’ of the trial.” Byrd, 645 F.3d at 1168 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). With one exception, which relates to counsel’s failure to redact certain letters, the OCCA denied relief on all of the instances of ineffective assistance alleged by Mr. Hooks under the second (prejudice) prong of Strickland. This was an entirely appropriate mode of analysis. Indeed, the Supreme Court in Strickland intimated that resolving ineffective-assistance claims on prejudice grounds may be preferable: “The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course" }, { "docid": "21947928", "title": "", "text": "principle to the case in an objectively unreasonable manner. Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). A writ of habeas corpus may also issue if the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under AEDPA, state-court factual findings are “presumed to be correct” unless the habeas petitioner rebuts the presumption through “clear and convincing evidence.” Id. § 2254(e)(1); see Miller v. Johnson, 200 F.3d 274, 281 (2000). III. DISCUSSION Both of Amador’s ineffective assistance of appellate counsel claims are governed by the test set forth in Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner first must show that counsel’s performance was deficient. Id. Counsel’s performance is deficient if it falls below an objective standard of reasonableness. Id. A court’s review of counsel’s conduct is deferential, presuming that “counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. While counsel need not raise every non-frivolous ground available on appeal, “a reasonable attorney has an obligation to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful .... Solid, meritorious arguments based on directly controlling precedent should be discovered and brought to the court’s attention.” United States v. Williamson, 183 F.3d 458, 462-63 (5th Cir.1999). Once the petitioner establishes deficient performance, he then must show that counsel’s objectively unreasonable performance prejudiced the petitioner. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. A petitioner suffers prejudice if, but for the deficient performance, the outcome of the trial — or, in this case, the appeal— would have been different. Id. Although Strickland itself involved ineffective assistance of trial counsel, the Strickland analysis applies equally to claims of ineffective assistance of appellate counsel. See Mayabb v. Johnson, 168 F.3d 863, 869 (5th Cir.1999) (applying Strickland to an ineffective assistance of appellate counsel claim" }, { "docid": "18025552", "title": "", "text": "prong “focuses on the result of counsel’s deficient performance: ‘When a defendant challenges a death sentence ..., the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’” Roberts v. Thaler, 681 F.3d 597, 610 (5th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 529, 184 L.Ed.2d 345 (2012) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Prejudice exists when the likelihood of a different result is “substantial, not just conceivable.” Richter, 131 S.Ct. at 791-92. When an ineffective-assistance-of-counsel claim is subject to AED-PA, “the pivotal question is whether the state court’s application of the Strickland standard was unreasonable.” Id. at 785. The Supreme Court has explained: This is different from asking whether defense counsel’s performance fell below Strickland’s standard. Were that the inquiry, the analysis would be no differ ent than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AED-PA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, [529 U.S.] at 410, 120 S.Ct. 1495. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself. Id. Thus, while “[sjurmounting Strickland’s high bar is never an easy task,” “establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Id. at 788 (citations omitted). Both the Strickland standard and the AEDPA standard are “highly deferential” and “when the two apply in tandem, review is ‘doubly’ so.” Id. (citations omitted). With this precedent in mind, we first turn to what Trottie calls the “heart” of his ineffective-assistance claim: trial counsel’s alleged failure to investigate and present" }, { "docid": "3739648", "title": "", "text": "it identifies the correct governing principle but unreasonably applies that principle to the facts of the case. Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). The question is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Further, the federal habeas court must defer to the state court’s factual findings unless the petitioner rebuts those findings with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Because Day presents claims of ineffective assistance of counsel, the district court’s task was to analyze the state court habeas decision in light of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland established a two-prong test for deciding ineffective assistance claims, under which the petitioner must show that trial counsel’s performance was deficient and that the deficient performance prejudiced the defendant. Id. at 687, 104 S.Ct. 2052. Counsel’s performance is deficient where it falls short of reasonable performance under prevailing professional norms. Id. at 688, 104 S.Ct. 2052. The standard requires the reviewing court to give great deference to counsel’s performance, strongly presuming counsel exercised reasonable professional judgment. Id. at 690, 104 S.Ct. 2052. In ordér to prove prejudice, “[t]he defendant must show that there is'a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 695, 104 S.Ct. 2052. The petitioner must “affirmatively prove,” not just allege, prejudice. Id. at 693, 104 S.Ct. 2052. If the petitioner fails to prove the prejudice component, the court need not address the question of counsel’s performance. Id. at 697, 104 S.Ct. 2052. III. Day’s issue on appeal is whether the district court erred when it declined to apply Draughon v. Dretke to her case, concluding that Draughonapplies only to death penalty cases. The district court’s determination that Draughon’s precedential value is limited to capital habeas cases is a conclusion of law, reviewed de novo by this Court. Gomez," }, { "docid": "220562", "title": "", "text": "circumstances of this case do not permit the extensive new evidence taken into account by the majority. A. No Unreasonable Application of Clearly Established Federal Law Under § 2254(d)(1) Detrich has consistently argued that he is entitled to habeas relief because the state post-conviction court unreasonably applied the Strickland standard. Given the fact-intensive nature of the Strickland inquiry, it is understandable that the majority desires to fit its analysis under § 2254(d)(2) — the “unreasonable determination of the facts” prong of the AEDPA. On reflection and careful review of the record, however, I conclude that this case simply does not present the situation where the state court’s factual finding was unsupported by sufficient evidence, where the process employed by the state court was defective, or where the state court made no factual finding at all. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004). Rather, the post-conviction court’s decision turns on the “application of’ the prejudice prong of Strickland, which constitutes “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The majority’s ultimate conclusion rests on its disagreement with the state court’s determination that Detrich was not prejudiced by his counsel’s ineffective assistance. To prevail on his ineffective assistance of counsel claim, Detrich must show both (1) “that counsel’s performance was deficient,” and (2) “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Under the prejudice analysis, there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Further, our review is “doubly deferential” under the AEDPA, and Detrich must show that it was necessarily unreasonable for the state court to conclude that: (1) he had not overcome the strong presumption of competence; and (2) he had failed to undermine confidence in the outcome of the state court proceeding. Pinholster, 131 S.Ct. at 1403 (citation omitted). Detrich makes no such showing. Our debate centers on the second prong of Strickland. Ultimately, I read the majority’s position to be that," }, { "docid": "14989074", "title": "", "text": "application of clearly established federal law, the district court may grant habeas relief if the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). However, the state court’s factual determinations are presumed correct and the petitioner can rebut this presumption only with clear and convincing evidence that the state court’s factual determinations were erroneous. See 28 U.S.C. § 2254(e)(1). “[T]he statutory presumption of correctness applies only to findings of fact made by the state court, not to mixed determinations of law and fact.” Parker v. Head, 244 F.3d 831, 836 (11th Cir.2001). A defendant claiming ineffective assistance of counsel in violation of the Sixth Amendment must demonstrate that: (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the outcome of the proceedings. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. We have observed that under the exacting rules and presumptions set forth in Strickland, “the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.1995) (en banc) (quotation marks and citation omitted). Because the failure to demonstrate either deficient performance or prejudice is dispositive of the claim against the petitioner, “there is no reason for a court deciding an ineffective assistance claim to ... address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. Accordingly, we may consider whether the petitioner suffered prejudice as a result of counsel’s alleged errors without first evaluating the adequacy of counsel’s performance. See id.; see also McClain v. Hall, 552 F.3d 1245, 1251 (11th Cir.2008) (“We may decline to decide whether the performance of counsel was deficient if we are convinced that [the petitioner] was not prejudiced”). In" }, { "docid": "3878681", "title": "", "text": "1495. A state court’s factual findings are presumed correct unless rebutted by the petitioner with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). “This presumption of correctness applies equally to factual determinations made by state trial and appellate courts.” Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir.2003) (citing Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)). III. Analysis Kokal’s claim boils down to this: his trial attorney was constitutionally ineffective during the penalty phase because counsel failed to conduct a reasonable investigation that would have revealed organic brain damage. To establish ineffective assistance, a petitioner must show both incompetence and prejudice: (1) he must show that “counsel’s representation fell below an objective standard of reasonableness,” and (2) he must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052; accord Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams, 529 U.S. at 390-91, 120 S.Ct. 1495; Darden v. Wainwright, 477 U.S. 168, 185-87, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Because a petitioner’s failure to show either deficient performance or prejudice is fatal to a Strickland claim, a court need not address both Strickland prongs if the petitioner fails to satisfy either of them. See Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (11th Cir.2009) (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052). As a result, a court may resolve whether the petitioner established prejudice as a result of counsel’s errors without first considering the adequacy of his coun sel’s performance. Id.; see also McClain v. Hall, 552 F.3d 1245, 1251 (11th Cir.2008) (“We may decline to decide whether the performance of counsel was deficient if we are convinced that [the petitioner] was not prejudiced”). Since the Florida Supreme Court’s determination that Kokal failed to establish Strickland prejudice was not contrary to nor an unreasonable application of clearly established law, we only address prejudice. To establish prejudice, Kokal must show that, but for" }, { "docid": "14392123", "title": "", "text": "sentencing, Hodges must show both that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. With respect to performance, “counsel should be strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Pinholster, 131 S.Ct. at 1403. An attorney’s failure to reasonably investigate the defendant’s background and present mitigating evidence to the jury at sentencing can constitute ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). However, “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.” Id. at 533, 123 S.Ct. 2527. The court must consider not only the evidence known to counsel, but also whether that evidence “would lead a reasonable attorney to investigate further.” Id. at 527, 123 S.Ct. 2527. “[I]f a habeas claim does not involve a failure to investigate but, rather, petitioner’s dissatisfaction with the degree of his attorney’s investigation, the presumption of reasonableness imposed by Strickland will be hard to overcome.” Campbell v. Coyle, 260 F.3d 531, 552 (6th Cir.2001) (internal quotation marks omitted). “[Tjhere is no prejudice when the new mitigating evidence ‘would barely have altered the sentencing profile presented’ to the decision-maker.” Sears v. Upton,- U.S. -, 130 S.Ct. 3259, 3266, 177 L.Ed.2d 1025 (2010) (quoting Strickland, 466 U.S. at 700, 104 S.Ct. 2052). “Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Richter, 131 S.Ct. at 788. “The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Id. (internal quotation marks and citations omitted). Therefore, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland ’s deferential standard.” Id. The state court record supports the conclusion that Hodges’s trial counsel reasonably investigated Hodges’s background and presented" }, { "docid": "16489635", "title": "", "text": "established federal law, or the Tennessee Court of Criminal Appeals unreasonably interpreted the facts in this case. Federal courts must defer to state court factual findings, according them a presumption of correctness that the petitioner may rebut only with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). This presumption only applies to underlying basic, primary, or historical facts, and not to mixed questions of facts and law. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir.1997), cert. denied, 523 U.S. 1133, 118 S.Ct. 1827, 140 L.Ed.2d 962 (1998); West v. Seabold, 73 F.3d 81, 84 (6th Cir.), cert. denied, 518 U.S. 1027, 116 S.Ct. 2569, 135 L.Ed.2d 1086 (1996) Ineffective assistance of counsel in a petition for habeas corpus review presents a mixed question of law and fact. West v. Seabold, 73 F.3d at 84. Therefore, a state court’s conclusion counsel rendered effective assistance of counsel is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. § 2254(e)(1). Ineffectiveness is a mixed question of law and fact, not a question of basic, primary, or historical fact. State court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of 28 U.S.C. § 2254(e), however, the performance and prejudice components of the ineffectiveness inquiry, which are mixed questions of law and fact, are not entitled to the deference. See Rickman v. Bell, 131 F.3d at 1153-54. To obtain relief, Jones must show the State court’s adjudication resulted in a decision that involved an unreasonable application of clearly established Federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). In order to demonstrate ineffective assistance of counsel, Jones must not only show his attorney’s representation fell below the standard of competence demanded of attorneys in criminal cases, but also, there is a reasonable probability, but for the attorney’s unprofessional errors, the result of the proceeding would have been different. The Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established the criteria for determining whether" }, { "docid": "1468687", "title": "", "text": "by her alcoholism and other factors. The State responds that Parker’s attorneys’ performance was objectively reasonable and that, to the extent their performance was deficient, Parker cannot show prejudice. We must review Parker’s claim for ineffective assistance of counsel under the two-prong standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim of ineffective assistance of counsel, Parker must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052. To prove deficiency, Parker must show that his counsel’s performance “fell below an objective standard of reasonableness” as measured by prevailing professional norms. Id. at 688, 104 S.Ct. 2052. Under the prejudice prong, Parker “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The Strickland standard contemplates courts’ indulgence in a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” See id. at 689, 104 S.Ct. 2052; see also Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 739-40, 178 L.Ed.2d 649 (2011) (citations omitted) (internal quotation marks omitted) (“Surmounting Strickland’s high bar is never an easy task.... The question is whether an attorney’s representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.”). It is “all the more difficult” to prevail on a Strickland claim under § 2254(d). Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). As the standards that Strickland and § 2254(d) create are both “ ‘highly deferential,’ ” review is “ ‘doubly ” so when the two apply in tandem. Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)). Thus, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were reasonable.” Id. Rather, “[t]he question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. The Michigan Court of Appeals rejected Parker’s claim" }, { "docid": "20765087", "title": "", "text": "Supreme Court precedent: that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted. Matteo, 171 F.3d at 891 (internal quotations omitted). Here, the “clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), is the standard for ineffective assistance of counsel enunciated in Strickland. See Williams, 529 U.S. at 391, 120 S.Ct. 1495. Under Strickland, a defendant seeking to establish a Sixth Amendment violation must show that counsel’s performance fell below an objective standard of reasonableness, as evaluated in light of the facts of the case at the time of counsel’s conduct. Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052. A defendant also must show that counsel’s deficient performance actually prejudiced his defense. Id. at 687, 104 S.Ct. 2052. A defendant is prejudiced if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probabihty sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. The reviewing court must consider the effect of any errors in light of the totality of the evidence. Id. at 695-96, 104 S.Ct. 2052. A defendant must demonstrate both deficient performance and resulting prejudice in order to state an ineffective assistance claim. Id. at 697, 104 S.Ct. 2052. Because Strickland does not unequivocally mandate a particular outcome in this case, we proceed under the “unreasonable application” prong of 28 U.S.C. § 2254(d)(1). We need not address the first prong of the Strickland test under § 2254(d) because we agree with the District Court that the state courts’ rejection of Keller’s claim did not involve an unreasonable application of the second prong of that test under § 2254(d)(1). Keller argues that his trial attorney should have attempted to prevent the admission of Dr. Jens’s testimony about “sadistic personality disorder” on the ground that it was scientifically unreliable and not generally accepted in the field of psychiatry. Keller contends that this" }, { "docid": "16853716", "title": "", "text": "L.Ed.2d 389 (2000) (“[A]n unreasonable application of federal law is different from an incorrect application of federal law”). Our review of the district court’s decision to deny habeas relief is de novo. Spencer v. Sec’y, Dep’t of Carr., 609 F.3d 1170, 1177 (11th Cir.2010); Fotopoulos v. Sec’y, Dep’t of Carr., 516 F.3d 1229, 1232 (11th Cir.2008). We review any factual findings made by the district court for clear error, however. Spencer, 609 F.3d at 1177. A. To succeed on an ineffective assistance of counsel claim, Bishop has the burden of demonstrating both deficient performance and prejudice: he must establish both that “counsel’s representation fell below an objective standard of reasonableness,” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The Supreme Court also made clear in Strickland that a court need not address both prongs if the petitioner has made an insufficient showing on one of them, and that “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697, 104 S.Ct. 2052; accord Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.2000) (“[T]he court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.” (citation omitted)). Moreover, we do not apply Strickland de novo, but rather through the additional prism of AEDPA deference. See 28 U.S.C. § 2254(d)(1). Under this standard, “[t]he pivotal question is whether the state court’s application of the Strickland standard was unreasonable.” Richter, 131 S.Ct. at 785; accord id. (“A state court must be granted a deference and latitude that are not in" }, { "docid": "4803471", "title": "", "text": "125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); that the pecuniary gain aggravating circumstance constituted unconstitutional “double counting”; and that the “cruel, depraved, or indifferent” aggravating circumstance was unconstitutionally vague and supported by insufficient evidence. II. Ineffective Assistance of Counsel To obtain relief based on ineffective assistance of trial counsel, Williams must establish that counsel’s performance fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Although the Supreme Court of Arkansas considered both deficient performance and prejudice, we need address only its prejudice ruling. See id. at 697, 104 S.Ct. 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”). To demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. When the claim is that additional mitigating evidence should have been presented at the penalty phase, petitioner must show “a reasonable probability that at least one of the jurors would have voted against the imposition of the death penalty.” Simmons v. Luebbers, 299 F.3d at 939. Because the state courts ruled on the merits of this claim, we must apply the deferential standards for reviewing state court determinations mandated by AED-PA. See Helmig v. Kemna, 461 F.3d 960, 966 (8th Cir.2006). Therefore, Williams must demonstrate that the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established law, as determined by the Supreme Court of the United States,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence” presented in state court. 28 U.S.C. § 2254(d)(1), (2). Findings of fact by the state trial and appellate courts are presumed correct unless rebutted by “clear and convincing evidence.” § 2254(e)(1). 1. In holding that Williams failed to prove Strickland prejudice, the Supreme Court of" }, { "docid": "5214340", "title": "", "text": "28 U.S.C. § 2254(e)(2). Furthermore, “[bjecause the deferential standards prescribed by [AEDPA] control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.” Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). The Supreme Court has recently clarified that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). However, in this case I believe that AEDPA does not apply and both the deficiency prong and the prejudice prong of Davis’s ineffective assistance claim are subject to de novo review. The prejudice prong is subject to de novo review because the Michigan trial court, the highest court to reach this issue, analyzed it under an improper standard. The trial court held that Davis did not demonstrate ineffective assistance because he did not show that trial counsel’s failure to call Washington “was prejudicial to the extent that but for that deficiency, [Davis] would have had a more positive outcome at trial, which is necessary to overcome the presumption of trial strategy.” People v. Davis, No. 02-4943-02, slip op. at 1 (Mich. Cir.Ct. Nov. 15, 2004) (emphasis supplied). The Supreme Court, in contrast, has made clear that under the prejudice prong, Davis need only establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (emphasis supplied). The Supreme Court emphasized that “a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Id. at 693, 104 S.Ct. 2052. Rather, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. The Michigan trial court clearly applied the incorrect standard. Cf. West v. Bell, 550 F.3d 542, 553 (6th Cir.2008) (holding that the state court used the wrong standard for determining" }, { "docid": "19138245", "title": "", "text": "I issued. Instead of finding that the Florida Supreme Court decision was contrary to or an unreasonable application of Strickland under § 2254(d)(1), we remanded for a federal evidentiary hearing because the state record was “barren.” 680 F.3d at 1288. In short, we aré not bound by any claimed § 2254(d) holding drawn from Pope I because we never decided the question. What’s more, insofar as Pope I suggested that § 2254(e)(2) hearing evidence could be used as part of the § 2254(d) analysis, we could not follow that ruling because it cannot be reconciled with the Supreme Court’s unambiguous holding in Pinholster. See 131 S.Ct. at 1398. Pope I left open the § 2254(d) question. The Supreme Court has held that we must decide this essential matter based on the record presented to the state court. Therefore, we are required to determine today whether the Florida Supreme Court’s denial of relief was contrary to or an unreasonable application of Strickland based only on that record. III. Pope asserts two Strickland claims. First, he says that his sentencing-phase counsel was ineffective for failing “to conduct any background investigation and to present any mitigation evidence.” He also argues counsel was ineffective for failing to object to “prosecutorial misconduct in the state’s penalty phase closing argument” when the prosecutor “disclosed non-record evidence that Mr. Pope preferred death.” Strickland requires that Pope establish both “that his counsel provided deficient assistance and that there was prejudice as a result.” Richter, 131 S.Ct. at 787. “To establish deficient performance, a person challenging a conviction must show that ‘counsel’s representation fell below an objective standard of reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Prejudice requires showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. In this case, we need not address whether counsel performed deficiently because Pope cannot establish prejudice. See id. at 697, 104 S.Ct. 2052 (“[A] court need" }, { "docid": "8222494", "title": "", "text": "Strickland, 466 U.S. at 689, 104 S.Ct. 2052). As a result, the Court has held that “[c]ounsel [i]s entitled to formulate a strategy that [i]s reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.” Id. at 107, 131 S.Ct. 770. When a petitioner raises a claim of ineffective assistance in a habeas petition, our “highly deferential” assessment of counsel’s performance under Strickland’s first prong, [Danny] Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010), is “doubly” so, Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009), because we deferen tially evaluate counsel’s performance through the prism of AEDPA’s deference to the state court’s assessment of counsel’s performance. See Byrd, 645 F.3d at 1168 (noting that “[w]e defer to the state court’s determination that counsel’s performance was not deficient and, further, defer to the attorney’s decision in how to best represent a client” (alteration in original) (quoting Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th Cir. 2009))). Put another way, applying the first layer of deference, we review only “whether the state court’s ap plication of the Strickland standard was unreasonable.” Harrington, 562 U.S. at 101, 131 S.Ct. 770 (emphasis added). Applying the second layer, we “apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable professional assistance.” Id. at 104, 131 S.Ct. 770 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). As the Court cautioned in Harrington, “Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. (emphasis added); accord [Victor] Hooks v. Workman, 689 F.3d 1148, 1187 (10th Cir. 2012). As for the prejudice prong (i.e., the second prong), the Strickland Court opined: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a" }, { "docid": "20462598", "title": "", "text": "Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d); Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 780, 178 L.Ed.2d 624 (2011). Under AEDPA, we may grant relief only if the state court’s decision on the merits “was contrary to or an unreasonable application of clearly established Supreme Court precedent, or if it was based on an unreasonable determination of the facts in light of the evidence.” Kerr, 639 F.3d at 318 (citing 28 U.S.C. § 2254(d)(1) & (2)). When “no state court has squarely addressed the merits” of a habeas claim, however, we review the claim under the pre-AEDPA standard of 28 U.S.C. § 2243, under which we “ ‘dispose of the matter as law and justice require.'” Id. at 326 (quoting § 2243). This is “a more generous standard,” George v. Smith, 586 F.3d 479, 484 (7th Cir.2009): “we review the petitioner’s constitutional claim with deference to the state court, but ultimately de novo,” Kerr, 639 F.3d at 326 (citing Harrington, 131 S.Ct. at 788 (“Even under de novo review, the standard for judging counsel’s representation is a most deferential one.”)). B. Strickland Claim We first address Morales’s ineffective assistance of counsel claim. The clearly established Supreme Court precedent for ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffec five assistance of counsel, Morales has to show both “that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The second prong requires a showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. This requires “a probability sufficient to undermine confidence in the outcome,” id., and means a “substantial, not just conceivable” likelihood of a different result, Harrington, 131 S.Ct. at 791-92. We need not address both prongs of the Strickland analysis. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052. “If it is easier to dispose of [the] claim on the" } ]

[ { "docid": "23604805", "title": "", "text": "which began on February 13, 1977, makes this clear. The murder occurred at the end of an evening of bar hopping during which petitioner and the victim’s mother had been quarreling. According to the evidence ad duced at trial, petitioner kidnapped and killed Tiffany Loury either to get even with her mother or to save Tiffany from her parents, who, petitioner testified, were unfit to raise her. The first reason was quite plausible, for petitioner had previously threatened to kill his two-year-old son, in front of his seven months pregnant wife, the mother of the child, because she had spurned him. He did not carry out this threat; instead, he stabbed his wife. The record does not inform us as to when the court appointed attorney Reginald Haupt to defend petitioner, but I assume that it was well before December 3, 1976, when Dr. Bosch examined petitioner at the Central State Hospital at Milledgeville, Georgia, pursuant to the trial court’s order. The court apparently entered the order at Haupt’s request, although we do not know whether the court took this action because Haupt filed a special plea of insanity or because he informally requested the examination. The record is also silent as to when Haupt learned that his client had confessed to the murder. What we do know is that Dr. Bosch, following his psychiatric examination, issued a report containing the opinions I have mentioned and a statement that petitioner declined to tell him anything about the murder; petitioner told Bosch that he could not recall the event. It is clear that attorney Haupt received a copy of that report considerably in advance of trial, but we do not know what communication he may have had with Dr. Bosch thereafter. Though the record is silent on some of these matters, one thing is clear to me; that is, by the time the trial began Haupt was well prepared to try the guilt phase of the case and to present petitioner’s insanity defense. Haupt’s opening statement, his cross-examination of the State’s case — especially Dr. Bosch — and his direct examination" } ]

[ { "docid": "2193723", "title": "", "text": "history and abusive childhood — at least one juror would have voted against the death penalty. He is therefore - entitled to a new trial at the penalty phase. The sentencing phase of the trial under Ohio law is obviously a critical stage of the criminal proceeding which can result in the sentence of death and did so in this case. Yet Hamblin’s counsel performed virtually no investigation to prepare a defense. Counsel presented no meaningful evidence by way of mitigation as a result of the failure to investigate and prepare, not as a result of trial strategy after thorough research. It is not just that the defense presented on Hamblin’s behalf at the sentencing phase was ineffective; rather, Hamblin’s counsel did not present any meaningful mitigation evidence at the sentencing phase because he was not prepared due to his lack of knowledge and understanding of the sentencing phase of a capital case. This total lack of preparation, investigation and understanding of sentencing caused counsel’s deficient performance and extreme prejudice to Hamblin. IV. Because we find that counsel’s failure to investigate possible mitigating cireum- stances constitutes ineffective assistance of counsel warranting a new penalty phase trial for Hamblin, we pretermit any other sentencing issues raised in the habeas petition concerning the sentencing phase of the case, including whether Hamblin’s counsel was ineffective in other aspects of the sentencing phase and whether prosecu-torial misconduct at the sentencing phase undermined Hamblin’s constitutional right to a fundamentally fair trial. We will now turn to the issues raised by Hamblin concerning the guilt phase of his trial. A. Ineffective Assistance of Counsel at Culpability Phase Hamblin contends that his counsel should have put on an expert pathologist to counter the testimony of the prosecution’s expert. The Cuyahoga County Coroner testified that Lillian Merrick was killed by one or more blows to the head. Hamblin claims that an independent pathologist might have shown that death resulted from a single blow to the head intended only to disable the victim for purposes of robbing her, not to kill her — a less gory and disturbing scenario" }, { "docid": "10562846", "title": "", "text": "epitome of a strategic decision, and it is one that we will seldom, if ever, second guess,” and we held that a reasonable lawyer could decide to leave well enough alone and not subject to another round of cross-examination witnesses from whom he had already obtained during the guilt stage substantial evidence of serious mental problems. See id. at 1512. Exactly the same is true here. In this case, Provenzano has brought forth a report from another mental state expert indicating that additional mitigating circumstance evidence could have been put before the jury. See id. We noted in Waters that it is “a common practice” to file affidavits from witnesses who say they could have provided additional mitigating circumstance evidence, but “the existence of such affidavits, artfully drafted though they be, usually proves little of significance.” See id. at 1513. We reiterated in that decision what we had said more than once before: “The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel.” Id. at 1514, quoting Atkins v. Singletary, 965 E.2d 952, 960 (11th Cir.1992); Foster v. Dugger, 823 F.2d 402, 406 (11th Cir.1987). In this case, Provenzano’s experienced criminal defense attorneys retained investigators, interviewed myriad witnesses including family members, examined medical records, and assembled background information about their client. They forwarded that information to the mental state experts they obtained. See Provenzano v. Singletary, 3 F.Supp.2d at 1375. At trial, they presented two mental state experts, who were well versed in Provenzano’s background and behavior, and who testified to his serious mental problems, giving their opinion that he was insane at the time of the crime. See id., 3 F.Supp.2d at 1375, 1388-90. Counsel used that expert testimony skillfully in arguments to the jury at the penalty stage. See id., 3 F.Supp.2d at 1388-90. Provenzano’s counsel also used his sister as a guilt stage witness on the insanity issue. She testified in depth about her brother’s life and problems. At the penalty stage, counsel called a" }, { "docid": "4412182", "title": "", "text": "range of reasonable professional assistance, there is room for different strategies, no one of which is “correct” to the exclusion of all others. As we have recently observed, “The Supreme Court has recognized that because representation is an art and not a science, ‘[ejven the best criminal defense attorneys would not defend a particular client in the same way.’” Waters v. Thomas, 46 F.3d 1506, 1522 (11th Cir.1995) (en banc) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065); see also White v. Singletary, 972 F.2d 1218, 1220 (11th Cir.1992) (stating that the test is not what the best lawyers would have done or what most good lawyers would have done, but only whether some reasonable attorney could have acted in the circumstances as this attorney did). Whether to pursue a residual doubt strategy or a strategy seeking mercy notwithstanding guilt is a strategic question left to counsel. We will not second-guess counsel’s answer. The record in this case establishes that counsel’s decision not to belabor the guilt issue at the sentence stage was entirely reasonable. At the trial level, Felker was represented by three retained attorneys who divided among themselves responsibility for various tasks. The attorney primarily responsible for formulating and carrying out defense strategy at the sentence stage was J. Robert Daniel, an experienced attorney who had represented capital defendants before. After conducting an evidentiary hearing on this claim in the state habeas proceeding, the trial court found that prior to trial Daniel interviewed numerous witnesses in preparation for the sentence stage. Based upon his past experience, Daniel believed that “after the jury rejects a claim of innocence there is no wisdom in going back to the same jury and asking for a life sentence while still telling the jury they made an erroneous decision.” He knew of another trial in which an attorney had attempted to litigate the guilt issue again at the sentence stage and had been unsuccessful. Rather than follow that strategy, which he believed to be unwise, Daniel decided to present mitigating evidence and argue that the jury should spare Felker’s life because" }, { "docid": "3046885", "title": "", "text": "been too strict on him. Williams’ mother asked the jury to spare her son’s life. Collins also presented as a mitigation witness a young woman who was a friend of Williams. She told the jury that Williams had been welcome in her home, and that her mother, stepfather, and sister knew him and approved of him. She told the jury she knew Williams well and he was incapable of committing such a violent crime. On August 29, 1986, the jury returned a death sentence verdict. Allen’s Appointment and the New Trial Motion and Amendments In accordance with Georgia’s Unified Appeal Procedure, Collins was relieved from representing Williams in the new trial and direct appeal proceedings. Allen was appointed for that purpose in the Fall of 1986. On September 23, 1986, Allen filed a skeletal motion for new trial, as was his practice; having met the filing deadline, he later supplemented that motion with two amendments. The new trial motion as initially filed consisted of five general grounds. On October 2, 1987, Allen filed the first amendment to the motion for new trial, which added 25 new and more specific grounds. His second amendment to the motion for new trial was filed on October 13, 1987, and it added two more grounds, one of which was a multi-part claim of ineffective assistance of counsel at the guilt and sentence stages. The motion as twice amended contained thirty grounds. Allen’s Investigation, Preparation, and the Strategic Decisions that He Made The first thing Allen did when he began representing Williams was go through the trial record and transcript, and he did that “a great deal” during the more than a year between his appointment and the new trial motion hearing. Having read the transcript of the trial many times, Allen was aware of everything in it by the time of the hearing. He also obtained Collins’ file and records about the case more than a year before the hearing. Five weeks before the hearing on the motion for new trial, the Georgia Supreme Court released its decision in Thompson v. State, 257 Ga." }, { "docid": "2636226", "title": "", "text": "adequately prepare for this stage of the pro ceeding. The claim is both general and particular. The general aspect concerns general preparation, and the particular aspect almost wholly the fact that Clozza’s parents and Dr. Lee were not recalled as witnesses although they had testified in the guilt stage of the proceeding. We note at the outset that the time and effort Legler spent in the guilt phase of the trial is relevant to preparation for sentencing so far as the same is useful for the sentencing phase as much of this was. See Darden v. Wainwright, 477 U.S. 168, 184-85, 106 S.Ct. 2464, 2473-74, 91 L.Ed.2d 144 (1986). In the beginning, counsel met with and spent time with Clozza to determine Clozza’s version of the facts as well as to discover the details of the confessions. He talked to witnesses who saw Clozza on the night of the crime and also visited the crime scene. His investigator talked with a probation officer in Michigan about Cloz-za’s prior conviction for attempted criminal sexual conduct and his presentence report was obtained for the Michigan offenses. Clozza was on parole at the moment and his supervising Virginia Beach parole officer was also talked to. Although he was the most experienced criminal defense attorney in Virginia Beach, this was Legler’s first capital case, for no capita] case had been tried in Virginia Beach for several years. In preparation, Legler spoke with other defense attorneys who had experience in capital cases. He also talked with police personnel involved in Clozza’s case and members of the Commonwealth Attorney’s office to determine what information the police had. He read and studied the statutes and procedures involved as well as publications on the subject of capital cases. In order to determine if any psychiatric defenses were available, counsel had Clozza examined by a psychiatrist from the University of Virginia Institute of Law and Psychiatry, as well as those from Central State Hospital who were employed by the Commonwealth. With regard to the sentencing phase and possible mitigating evidence, Legler spoke with two doctors from Central State Hospital" }, { "docid": "3046886", "title": "", "text": "amendment to the motion for new trial, which added 25 new and more specific grounds. His second amendment to the motion for new trial was filed on October 13, 1987, and it added two more grounds, one of which was a multi-part claim of ineffective assistance of counsel at the guilt and sentence stages. The motion as twice amended contained thirty grounds. Allen’s Investigation, Preparation, and the Strategic Decisions that He Made The first thing Allen did when he began representing Williams was go through the trial record and transcript, and he did that “a great deal” during the more than a year between his appointment and the new trial motion hearing. Having read the transcript of the trial many times, Allen was aware of everything in it by the time of the hearing. He also obtained Collins’ file and records about the case more than a year before the hearing. Five weeks before the hearing on the motion for new trial, the Georgia Supreme Court released its decision in Thompson v. State, 257 Ga. 386, 359 S.E.2d 664 (1987), which held that, from the date that decision was published in the advance sheets, any ineffective assistance of counsel claim not raised in a motion for new trial proceeding would be deemed waived. That was a new way of handling such claims, which before then could have been raised for the first time in state habeas proceedings. Allen learned of the Thompson decision, perhaps from Bright or Kendall, and thereafter amended his motion to include a multi-part claim charging that Collins had been ineffective at the guilt and sentence stages. The change in procedure announced in the Thompson decision caused Allen to raise the ineffective assistance claim in the new trial motion instead of saving it for the state habeas proceeding, but after so many years, he is understandably unsure exactly when he learned of the Thompson decision. Asked ten years later at the evidentiary hearing on remand in this case, Allen said that he guessed and assumed he had not learned of the Thompson decision before he filed the" }, { "docid": "5092898", "title": "", "text": "Plant did not request a Denno hearing before the State made such a request (Ha. T. 299). Be that as it may, petitioner did receive a comprehensive Denno hearing which clearly indicated that his written statement was voluntarily given after he was fully advised of his rights. No prejudice resulted to petitioner because the Denno hearing was requested by the State. “It is all well and good for a millionaire to retain counsel with the instruction to ‘leave not the smallest stone unturned.’ But it goes too far to insist that such a course is a general constitutional mandate.” United States v. DeCoster, supra, at 210. From the trial transcript, it is obvious that Plant’s defense was concentrated on an attempt to prove his client did not fire the fatal shots. It is hard to fault this strategy. One wonders what other defense could have been advanced in the face of the State’s overwhelming case. In the context of this defense, the examination and cross-examination of the witnesses was pointed and skillful. The brevity of Plant’s questions is commendable. It is the inexperienced advocate who cross-examines too much. One of petitioner’s own witnesses testified as follows: Q I’d like to just sum up a little bit now. With regard to the guilt stage and the pretrial stage, do you feel that Plant was adequately prepared through investigation to effectively present the defense? A My problem with that is that I don’t know that there was much of a defense to present. I remember being surprised by the fact that he did hammer upon, in cross examination and otherwise, the only key issues that I felt like he had available to hammer upon. I don’t think he did a poor job at all with respect to the actual trial, guilt stage trial of the cause. (Isbell Dep. 72.) Plant is criticized because he failed to file motions in the trial court concerning the constitutionality of the Arkansas death penalty statute. Assuming that Plant should have filed such motions, how was petitioner prejudiced? The issue as to the constitutionality of the Arkansas" }, { "docid": "10562847", "title": "", "text": "is not a sufficient ground to prove ineffectiveness of counsel.” Id. at 1514, quoting Atkins v. Singletary, 965 E.2d 952, 960 (11th Cir.1992); Foster v. Dugger, 823 F.2d 402, 406 (11th Cir.1987). In this case, Provenzano’s experienced criminal defense attorneys retained investigators, interviewed myriad witnesses including family members, examined medical records, and assembled background information about their client. They forwarded that information to the mental state experts they obtained. See Provenzano v. Singletary, 3 F.Supp.2d at 1375. At trial, they presented two mental state experts, who were well versed in Provenzano’s background and behavior, and who testified to his serious mental problems, giving their opinion that he was insane at the time of the crime. See id., 3 F.Supp.2d at 1375, 1388-90. Counsel used that expert testimony skillfully in arguments to the jury at the penalty stage. See id., 3 F.Supp.2d at 1388-90. Provenzano’s counsel also used his sister as a guilt stage witness on the insanity issue. She testified in depth about her brother’s life and problems. At the penalty stage, counsel called a detective who testified about Proven-zano’s paranoid behavior, and also about Pro-venzano having told officers about explosives in his apartment because he did not want them to get hurt. They also called Provenza-no himself as a witness in his own behalf at the penalty stage, and it appears from the record that he testified for about two hours. See Waters v. Thomas, 46 F.3d at 1519 (recognizing that skilled defense counsel sometimes put a capital defendant on the stand to “humanize” him, because “it may be more difficult for a jury to condemn to death a man who has sat on the stand a few feet from them, looked them in the eyes, and talked to them.”). Provenzano received effective assistance of counsel at the penalty stage. The Ake v. Oklahoma Claim To the district court’s discussion of the Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), claim, we add that this Circuit’s leading decision on Ake, which is Clisby v. Jones, 960 F.2d 925 (11th Cir.1992) (en banc), forecloses Provenzano’s" }, { "docid": "3046939", "title": "", "text": "n. 10 (11th Cir.1987), \"counsel made no effort either to locate an expert psychiatric witness or to put on background character testimony from family members in mitigation;” even though personally convinced Elledge was “crazy” and aware that prison authorities had been giving him antipsychotic and other medications, counsel still made no effort to seek new expert advice or to otherwise pursue the issue. The two defense counsel in Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.1989), conducted no investigation at all of mitigating circumstance evidence before the sentence hearing began, because each erroneously thought the other one was going to do it. A similar miscommunication occurred in Jackson v. Herring, 42 F.3d 1350 (11th Cir.1995), where one trial counsel thought the second one would bear \"the bulk of the responsibility” for the sentence stage, while the second one thought the first would \"take the lead in investigating mitigating evidence,” id. at 1364 (marks, brackets, and footnote citation to record omitted). One counsel was \"shocked” by the guilt stage verdict, and neither counsel had expected they would have only one hour after the verdict to prepare for the sentence stage. See id. \"Between the time of petitioner’s indictment and sentencing, her lawyers did no work on the sentencing aspects of her case,” and \"[n]o family members or friends were contacted.” Id. at 1365 (quoting the district court’s findings). Furthermore, counsel’s failure to present any mitigating circumstance evidence at all in Jackson was \"at least partially influenced by the prosecution’s, threat to introduce” in response to any such evidence a pending assault with intent to murder charge. That charge was not admissible because, as their client had accurately informed them, the charge was against her sister, not against her. See id. at 1368. Counsel’s performance in Jackson in no way compares with Allen's performance in the motion for new trial proceeding. . We say it \"probably” would have been better, because it is by no means certain that Williams’ sister (who was a guilt stage witness against him) or his father would have testified at the hearing on the motion for" }, { "docid": "2636225", "title": "", "text": "sober during all of this? A. Yes, Sir. Ciozza claims that counsel erred by not preparing him for such cross-examination. Counsel, however, stated at the state habe-as proceeding that he does not normally prepare clients for cross-examination, believing with reason that a witness who is not lying will not be tripped up. For nine months, Ciozza had told his attorney that he was drunk during the offense, but changed his story on the stand with no forewarning. If indeed it was the truth that he was sober, no amount of preparation would have changed the answer. How the attorney should have prepared Ciozza short of instructing him to lie is not suggested even now, and we know of no satisfactory explanation. Thus, we cannot conclude Ciozza was represented by ineffective counsel at the guilt phase of the trial. Ciozza next argues that he was represented by ineffective counsel at the sentencing phase, which claim is also reviewed under the two part Strickland analysis. Initially, Ciozza contends that his counsel was ineffective because he did not adequately prepare for this stage of the pro ceeding. The claim is both general and particular. The general aspect concerns general preparation, and the particular aspect almost wholly the fact that Clozza’s parents and Dr. Lee were not recalled as witnesses although they had testified in the guilt stage of the proceeding. We note at the outset that the time and effort Legler spent in the guilt phase of the trial is relevant to preparation for sentencing so far as the same is useful for the sentencing phase as much of this was. See Darden v. Wainwright, 477 U.S. 168, 184-85, 106 S.Ct. 2464, 2473-74, 91 L.Ed.2d 144 (1986). In the beginning, counsel met with and spent time with Clozza to determine Clozza’s version of the facts as well as to discover the details of the confessions. He talked to witnesses who saw Clozza on the night of the crime and also visited the crime scene. His investigator talked with a probation officer in Michigan about Cloz-za’s prior conviction for attempted criminal sexual conduct and" }, { "docid": "23032652", "title": "", "text": "visited with Proffitt a number of times and that Proffitt had appeared lucid to him. Just as a psychiatrist should not assume the role of a lawyer, an attorney defending someone subject to the death penalty should not assume he is capable of evaluating whether his client, at the time the crime was committed, “was under the influence of extreme mental or emotional disturbance” or had a substantially impaired capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” Fla.Stat.Ann. § 921.141(6)(b) and (f) (West Supp. 1981). This court has long recognized the responsibility of counsel to acquire expert psychiatric assistance when a defendant’s mental condition may be critical to the outcome of his case. Beavers v. Balkcom, 636 F.2d 114 (5th Cir. Unit B 1981); United States v. Fessel, 531 F.2d 1275 (5th Cir. 1976). At the habeas hearing, counsel also stated that he did not engage in any separate and distinct preparation for the penalty phase, but prepared for that part of the trial in conjunction with his preparation of the case as a whole. He said that he had no strategy for the penalty stage but that his approach to that stage was dependent upon what occurred during the guilt phase. With only a thirty-five minute break between the end of the guilt phase and the beginning of the sentencing phase of the trial, counsel obviously had no opportunity to remedy his inadequate preparation. This failure to investigate the entire area of his client’s mental condition and possible mitigating circumstance strikes at the core of ineffective assistance of counsel. An attorney cannot make a wise choice of strategy without meeting the initial duty to investigate. Beavers v. Balkcom, 636 F.2d 114. The lawyer also has a substantial and very important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant himself. Information" }, { "docid": "17388965", "title": "", "text": "He was the only one who testified that he saw the accident — the others said that they had not. Following are excerpts from his testimony : “By Mr. Kuby [plaintiff’s counsel] (p. 13 N.T.): Q. Were you in a position to see what was going on down on the railroad car ? A. Well, yes, pretty good. “Q. When the winch jumped, as you said, could you see what happened to the crate on the railroad car? A. Yes, she swung around. “Q. What did you see it do with respect to David Smith? A. I see it hit him and he fell off the car. * •» * * -x- * “By the Court (p. 14 N.T.): Q. What part of Smith did it hit? Did it hit him on the head or the back of — A. No, it must have hit him on the head. “Q. Must have hit him on the head. It was pretty far above the car when it hit him, was it? A. Yes.” In addition to the foregoing the record even prior to the trial demonstrated that plaintiff premised his claim on his contention that he was “struck and knocked to the ground” by reason of the improper operation of the winches. In his Complaint, plaintiff (para. 6) made general allegations of unseaworthiness and negligence with respect to the winches and alleged that as a result “he was caused to be thrown from a freight car down to the ground.” (Emphasis supplied.) Subsequently, defendant filed Interrogatories in paragraph 14 of which it asked plaintiff to: “State in detail exactly how plaintiff is alleged to have sustained the injuries complained of, and in connection therewith state: “(a) exactly where plaintiff was working at the time; “(b) exactly what plaintiff was doing at the time; “(c) what, if anything, came in contact with plaintiff, thus occasioning his fall.” In his “Answers to Defendant’s Interrogatories” plaintiff stated in paragraph 14: “Plaintiff was standing clear of draft, after having assisted in securing lifting rig around heavy crate, waiting for it to be lifted up, over" }, { "docid": "2749783", "title": "", "text": "be repeated at trial and set about to find a way to impeach it. If counsel had looked, Brown says, he could have discovered the documents indicating \"White’s six-year silence about the statement. The failure to discover and use that evidence to impeach White’s testimony at trial was ineffective assistance of counsel, Brown argues. He asserts this ineffective assistance claim as to sentencing, not as to the guilt stage. The state habeas court concluded that trial counsel performed deficiently in not discovering and using the fact that White had not reported to the prosecutor Brown’s statement at booking soon after it was made. The court denied relief, however, on the ground that no reasonable probability existed that Brown’s sentence would have been different had counsel discovered and used the fact of the delay in reporting to attack White’s testimony. In this federal habeas proceeding, the district court agreed with the state habeas court that Brown had not established prejudice from his trial counsel’s failure to discover the information and use it to impeach White. Like the state court, the district court reasoned that even apart from White’s testimony, the other evidence supporting the death sentence was overwhelming. It followed that the state habe-as court’s decision was not an unreasonable application of federal law, and federal habeas relief was due to be denied. B. Witness Tucker Anita Tucker also testified during the sentence phase. She told how she had met Brown while both of them were incarcerated in the Gwinnett County Jail. On one occasion, she and Brown were transported from that jail to the courthouse in the same car. During that trip, Brown had told her she “should play crazy and that [she] would not do any more than two years.” Tucker said that Brown knew of her because he had been incarcerated with her co-defendants in an unrelated case. Tucker also testified about another meeting with Brown which had taken place after her conviction, when she was incarcerated at Hardwick Correctional Institution. This meeting occurred when Tucker was transported to Central State Hospital for a dental evaluation. While she" }, { "docid": "3457106", "title": "", "text": "for Smith’s I.Q., Mr. Parnham explained why he chose to make lack of intent and inability to deliberate the touchstones of Smith’s mitigation defense: Q: Do you recall that those school records indicated that at one point — or maybe at two different instances Mr. McBride had indicated a low I.Q.?- A: I don’t remember. Q: What was your trial strategy at guilt innocence in this case? A: Bottom is his lack of intent to kill. In my conversations with Mr. Smith and reviewing the State’s file, and factual preparation, it was apparent to me that that was not only the best legal approach to the representation at guilt or innocence of Mr. Smith but also was borne out factually by the circumstances developed during the police investigation. And I still believe that to this day. It may not be relevant, but I absolutely believe that Robert Smith never intended to kill that man. Q: Can you tell the Court, please, what your strategy was at — with regards to your punishment argument in this case? A: If my memory serves me adequately, I would have attempted to portray Robert, based upon the guilt or innocence evidence, as someone not deserving appropriate answers to the questions. And I believed that I needed to carry through the thread of defense that we had developed in guilt or innocence through the punishment phase. I felt very strongly that those facts spoke very positively as far as the lack of intent on this man’s part and would justify the jury not answering the questions that would result in the penalty of death. 2. Petitioner’s Childhood Head Injury Smith also argues that trial counsel failed to investigate and develop the evidence that Smith had suffered a concussion as a result of an automobile accident when he was a child. At the punishment phase, Smith’s father recalled that “[a] truck backed over him, backed into him and hit him beside the head. He wasn’t ran over but backed and knocked him unconscious.” Mr. Parnham then introduced into evidence the hospital records from Smith’s head injury." }, { "docid": "9705967", "title": "", "text": "argue that he might have been convicted but not sentenced to death if only no juror had been aware that he was wearing it. But remember that an unrelated challenge to his death sentence is pending in the district court. And in the sentencing hearing his counsel had argued against the death penalty on the ground that a “residual doubt” of Stephenson’s guilt had been created by his alibi witnesses and by witnesses who testified that they heard another person admit involvement in the murders. Remember too that the district judge found ineffective assistance of counsel at the penalty stage as well as the guilt stage, though she did not discuss that aspect separately. Whether “residual doubt” is appropriate for consideration in a death-penalty hearing was left open by the Supreme Court in Oregon v. Guzek, 546 U.S. 517, 525-26, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006), and we called it “questionable” in United States v. Corley, 519 F.3d 716, 729 (7th Cir.2008). It is unlikely that a jury would convict a defendant in a death case if it doubted his guilt. Jurors aware of the stun belt at the guilt phase might be confused or alarmed at its absence at the penalty hearing, and the jury as a whole might be scratching its collective head if (the stun belt having been discarded) there were more guards at the penalty stage than at the guilt stage. Such a change might actually prejudice the defendant in the eyes of jurors unaware of the stun belt; seeing more guards they might conclude that he was even more dangerous than they had thought in finding him guilty of three murders. But the district judge did not discuss the “residual doubt” issue in her opinion, and we do not know her thoughts on it. Marquez v. Collins, supra, 11 F.3d at 1244, suggests a different ground from “residual doubt” for challenging a visible restraint in a death-penalty hearing even though “when the complained of restraint comes only in the sentencing phase of a capital charge, a jury has just convicted of a violent crime" }, { "docid": "22242580", "title": "", "text": "petitioner, who was quickly determined competent before voir dire began. The last-ditch efforts to forestall trial were undoubtedly driven by counsel’s woeful state of preparation. The only potential witnesses he interviewed were petitioner and his parents, and the value of these typically crucial discussions with the accused and his family was greatly limited by time (counsel evidently spent less than an hour with his client before trial) and counsel’s failure to engage himself with the substance of the case. Petitioner and his parents said counsel never discussed trial strategy with them, instead giving them generic assurances that he had never lost a case. He made little or no effort to draw exculpatory or mitigation evidence from them, or to develop and follow leads to other sources of such information. Indeed, counsel did not even explain the two-stage process of capital prosecution, leaving them ignorant in particular about the penalty phase and the nature of mitigation evidence. Counsel thus essentially foreclosed any helpful disclosures from those most likely to know, first-hand, the pertinent facts. And in the end, none of these often critical witnesses — people whom jurors understandably expect to hear from in the penalty phase in every death penalty case — took the stand. Counsel offered just two witnesses for the defense, one in the guilt phase and one in the penalty phase, and neither presentation bespeaks professional trial preparation. In the guilt phase, petitioner’s longtime friend, Steven Butler, testified that Chris Jackson told him Todd Williams shot both of the victims, contrary to Jackson’s trial testimony that petitioner shot Sharon Paisley. Significantly, it was Butler who contacted counsel just before trial to offer this testimony. This last-minute, fortuitous witness (who provided a mere seven pages of direct testimony), constituted the entire defense case in the guilt phase. The penalty-phase defense appears to have been, literally, an after-thought. Counsel, who had not prepared anyone to testify at this stage of trial, waived an opening statement. After the State completed its case in aggravation, counsel turned to the courtroom crowd and secured his only witness when the pastor at petitioner’s" }, { "docid": "21745512", "title": "", "text": "1224 (11th Cir.2001) (citations omitted). However, counsel need not present all available mitigating circumstance evidence in order for counsel’s conduct to be deemed effective at the sentencing stage. See Waters, 46 F.3d at 1511. Indeed, “the Supreme Court and this Court in a number of cases have held counsel’s performance to be constitutionally sufficient when no mitigating circumstance evidence at all was introduced, even though such evidence ... was available.” Id. (internal citations omitted) (emphasis added) (citing Darden, 477 U.S. at 184-87, 106 S.Ct. 2464; Stevens v. Zant, 968 F.2d 1076, 1082-83 (11th Cir.1992); Francis v. Dugger, 908 F.2d 696, 702-04 (11th Cir.1990); Stewart v. Dugger, 877 F.2d 851, 855-56 (11th Cir.1989)). With these principles in mind, we consider whether defense counsel’s performance at sentencing was deficient. Conklin argues that Chason’s failure to provide any mitigating evidence at sentencing was constitutionally ineffective in light of the fact that Chason’s sole strategy was to “humanize” Conklin in order to avoid a sentence of death. Notably however, the mitigating testimony of Conklin’s girlfriend and father had already been offered during the guilt stage. In addition, Chason chose to put Conklin on the stand and was able to elicit certain “humanizing” testimony directly from him. See Waters, 46 F.3d at 1519 (“putting the defendant on the stand sometimes can help ‘humanize’ him in the eyes of the jury”). Indeed, in his closing argument at the guilt stage, Chason argued, “You heard [Conklin’s father] testify that [the defendant] was on the right trail. That’s a mitigating factor. The fact the he has rehabilitated himself ... is a mitigating factor. [He had] his girlfriend, he had a job, he was trying to be a law abiding citizen. And what happened that night, Mr. Conklin knows what happened, and he explained to you what happened.” Having already presented substantial mitigating evidence during the guilt phase, we find that a reasonable attorney could have determined that any additional mitigating evidence at sentencing would not have been helpful. Conklin also argues that Chason could have elicited more evidence about his troubled childhood, his history of mental problems, and" }, { "docid": "23136486", "title": "", "text": "Glenn’s court-appointed lawyers were experienced criminal defense attorneys, and although they had some eight months to get ready for sentencing proceedings necessitated by a verdict that could hardly have come as a surprise to them, evidence presented to the state trial court at a post-sentence hearing showed that the lawyers made virtually no attempt to prepare for the sentencing phase of the trial until after the jury returned its verdict of guilty. It was obvious, or should have been, that the sentencing phase was likely to be “the stage of the proceedings where counsel can do his or her client the most good,” Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989)— yet Glenn’s counsel failed to make any significant preparations for the sentencing phase until after the conclusion of the guilt phase. This inaction was objectively unreasonable. “To save the difficult and time-consuming task of assembling mitigation witnesses until after the jury’s verdict in the guilt phase almost insures that witnesses will not be available.” Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th Cir.1991), cert. denied, 504 U.S. 943, 112 S.Ct. 2282, 119 L.Ed.2d 207 (1992). The reason for the paucity of mitigation evidence, as we have said, was lack of preparation on the part of Glenn’s lawyers. The lawyers made no systematic effort to acquaint themselves with their client’s social history. They never spoke to any of his numerous brothers and sisters. They never examined his school records. They never examined his medical records (including an emergency room record prepared after he collapsed in court one day) or records of mental health counseling they knew he had received. They never talked to his probation officer or examined the probation officer’s records. And although they arranged for tests, some months before the start of the trial, to determine whether he was competent to stand trial, they waited until after he had been found guilty before taking their first step — or misstep, as we shall explain presently — toward arranging for expert witnesses who might have presented" }, { "docid": "23136485", "title": "", "text": "not reasonably effective, petitioner cannot establish prejudice. There is almost no chance that the verdict would have been different but for counsel’s allegedly defective performance since evidence of guilt was overwhelming. In light of the facts introduced during trial, we conclude that there is no reasonable probability that different actions or a different strategy by counsel could have altered the verdict. That said, counsel’s performance during the penalty phase presents a much closer question that will require remand to the district court for further proceedings. First, it appears that trial counsel did not begin preparing for the mitigation phase of the trial until after conviction, as reflected in attorney billing notations. Under circumstances where a finding of guilty cannot come as a surprise, failure to anticipate such a finding so as to adequately prepare for the sentencing phase is constitutionally impermissible. See Glenn v. Tate, 71 F.3d 1204 (6th Cir.1995). In Glenn, another Ohio capital case, this court vacated the death sentence based upon ineffective assistance of counsel during the penalty phase: Although both of Glenn’s court-appointed lawyers were experienced criminal defense attorneys, and although they had some eight months to get ready for sentencing proceedings necessitated by a verdict that could hardly have come as a surprise to them, evidence presented to the state trial court at a post-sentence hearing showed that the lawyers made virtually no attempt to prepare for the sentencing phase of the trial until after the jury returned its verdict of guilty. It was obvious, or should have been, that the sentencing phase was likely to be “the stage of the proceedings where counsel can do his or her client the most good,” Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989)— yet Glenn’s counsel failed to make any significant preparations for the sentencing phase until after the conclusion of the guilt phase. This inaction was objectively unreasonable. “To save the difficult and time-consuming task of assembling mitigation witnesses until after the jury’s verdict in the guilt phase almost insures that witnesses will" }, { "docid": "23032653", "title": "", "text": "the trial in conjunction with his preparation of the case as a whole. He said that he had no strategy for the penalty stage but that his approach to that stage was dependent upon what occurred during the guilt phase. With only a thirty-five minute break between the end of the guilt phase and the beginning of the sentencing phase of the trial, counsel obviously had no opportunity to remedy his inadequate preparation. This failure to investigate the entire area of his client’s mental condition and possible mitigating circumstance strikes at the core of ineffective assistance of counsel. An attorney cannot make a wise choice of strategy without meeting the initial duty to investigate. Beavers v. Balkcom, 636 F.2d 114. The lawyer also has a substantial and very important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant himself. Information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships and the like will be relevant, as will mitigating circumstances surrounding the commission of the offense itself. Investigation is essential to fulfillment of these functions. A.B.A. Project on Standards for Criminal Justice, Standards Relating to: The Prose cution Function and The Defense Function, 227 (1970) (emphasis added). The Florida statute and the Dixon opinion make clear that an attorney has, and had in 1974, an obligation to investigate the possible existence of psychiatric evidence bearing on the statutory mitigating circumstances. The existence of such evidence might have made the difference between life and death for Proffitt. Counsel’s failure to have his client examined by a psychiatrist under such circumstances was automatically ineffective assistance. In its denial of habeas corpus, the district court relied in part on the fact that the state trial judge obtained two psychiatric evaluations before imposing a final sentence. Such reliance was unwarranted. Most important, the jury did not hear the testimony before making its sentencing recommendation. Furthermore, the" } ]

[ { "docid": "22268891", "title": "", "text": "viewed the 1-9 as wrong but only to avoid litigation. If so, it arguably would have been appropriate for CBI to insist that the record remain historically accurate by including a negative reference in past history. In my view, however, the record contains material factual disputes precluding such a conclusion at this stage of the case. . 15 U.S.C. §§ 1681a-1681t. . 15 U.S.C. § 1681e(b). . Id. § 1681i(a). If the consumer remains unsatisfied as to the outcome of the reinvestigation, he may file a brief statement setting forth his version of the dispute. The credit reporting agency is thereafter required to include that statement anytime the disputed information is published. Id. § 1681i(b)-(c). . See id. §§ 1681n & o. . See Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 39 (D.C.Cir.1984); Todd v. Associated Credit Bureau Servs. Inc., 451 F.Supp. 447, 449 (E.D.Pa.1977), aff'd mem., 578 F.2d 1376 (3d Cir.1978), cert. denied, 439 U.S. 1068, 99 S.Ct. 834, 59 L.Ed.2d 33 (1979); see also Equifax Inc. v. FTC, 678 F.2d 1047, 1051 (11th Cir.1982) (citing cases). . See Stewart v. Credit Bureau, Inc., 734 F.2d 47, 51 (D.C.Cir.1984). . See Thompson v. San Antonio Retail Merchants Ass’n, 682 F.2d 509, 513 (5th Cir.1982); Hauser v. Equifax, Inc., 602 F.2d 811, 814-15 (8th Cir.1979). . See Bryant v. TRW, Inc., 689 F.2d 72, 78 (6th Cir.1982). . This term of art is actually a misnomer because the burden of proving that a particular report is inaccurate is part of the plaintiffs case and not an affirmative defense for a defendant credit reporting agency. . See H.R.Conf.Rep. No. 1587, 91st Cong., 2d Sess. (1970), U.S.Code Cong. & Admin.News 1970, p. 4394. . See, e.g., McPhee v. Chilton Corp., 468 F.Supp. 494 (D.Conn.1978). . 451 F.Supp. 447 (E.D.Pa.1977), aff’d mem., 578 F.2d 1376 (3d Cir.1978), cert. denied, 439 U.S. 1068, 99 S.Ct. 834, 59 L.Ed.2d 33 (1979). . See id. at 448. . See id. at 449; see also Wright v. TRW Credit Data, 588 F.Supp. 112, 114 (S.D.Fla.1984); Lowry v. Credit Bureau, Inc., 444 F.Supp. 541, 544 (N.D.Ga.1978); Middlebrooks" } ]

[ { "docid": "23307474", "title": "", "text": "does not resolve the dispute.” 15 U.S.C. § 1681i(b). This presupposes that a reasonable reinvestigation has already been completed and the dispute nonetheless remains unresolved. See Guimond, 45 F.3d at 1335. A consumer alleging that no reasonable reinvestigation has taken place has a separate claim pursuant to § 1681i(a). 2. We now turn to the questions of a consumer reporting agency’s obligations pursuant to § 1681i(a) and a plaintiffs burden of proving a claim of negligent noncompliance with that section. TUC contends that § 1681i(a) did not impose on it an obligation to do any more than perform the reinvestigation it performed in this case. That is, TUC believes that when a consumer informs a consumer reporting agency that information contained in her consumer report is inaccurate, the consumer reporting agency is obliged only to confirm the accuracy of the information with the original source of the information. According to TUC, it is never required to go beyond the original source in ascertaining whether the information is accurate. This position has been rejected by the United States Courts of Appeals for the Fifth and Seventh Circuits. See Henson, 29 F.3d at 286-87; Stevenson v. TRW Inc., 987 F.2d 288, 293 (5th Cir.1993). In Henson, a state court judgment docket erroneously stated that an outstanding judgment had been entered against the plaintiff. Two credit reporting agencies included the erroneous entry on their consumer reports regarding the plaintiff. See Henson, 29 F.3d at 282-83. The plaintiff sued those credit reporting agencies pursuant to both § 1681e(b) and § 1681i. See id. at 284, 286. Section 1681e(b) requires consumer reporting agencies “to follow ‘reasonable procedures to assure maximum possible accuracy’ of the information” contained in the credit report. Id. at 284 (quoting 15 U.S.C. § 1681e(b)). The Seventh Circuit upheld the district court’s dismissal of the § 1681e(b) claim. See id. at 285-86. However, the court reversed the district court’s dismissal of the § 1681i claim, distinguishing between the duties imposed by the two sections of the statute. It stated: A credit reporting agency that has been notified of potentially inaccurate information in" }, { "docid": "23310927", "title": "", "text": "reasonable period of time reinvestigate and record the current status of that information,” and, if the “information is found to be inaccurate or can no longer be verified, ... promptly delete such information.” 15 U.S.C. § 1681i(a). The credit reporting agency’s “reinvestigation” typically entails sending a Consumer Dispute Verification form (“CDV’) to subscribers (usually creditors) that have reported a disputed account. As the district court explained, “[t]he CDV asks subscribers to check whether the information they have about a consumer matches the information on TRW’s credit report. If a subscriber fails to respond to a CDV or indicates that TRWs account information is incorrect, TRW deletes the disputed information.” Podell, 914 F.Supp. at 1028. If reinvestigation does not resolve an account dispute, consumers may file with their credit report “a brief statement setting forth the nature of the dispute,” 15 U.S.C. § 1681i(b), which must be included “in any subsequent consumer report containing the information in question” along with a notation that the matter is disputed by the consumer. 15 U.S.C. § 1681i(c). After reinvestigating a disputed account, TRW sends to the consumer who filed the dispute an updated credit report that includes notice of the consumer’s right to file the “brief statement” of dispute. Podell, 914 F.Supp. at 1028. The updated report serves as a confirmation of the reinvestigation process: if reinvestigation discloses an inaccuracy, the report reflects that the inaccurate entry has been deleted; if reinvestigation confirms that the debt is valid, the updated report retains the entry, but in addition advises the consumer of his right to file the statement pursuant to §§ 1681i(b) and (e). Id. Podell “categorically denies that he ever received a [written] confirmation of TRW’s reinvestigation” of the Salon account, “which TRW. was required to provide under the FCRA (15 U.S.C. § 1681i)”; and he alleges that “TRW failed to give [him] the right to have TRW include in his credit file ‘a brief statement setting forth the nature of the dispute’ pursuant to 15 U.S.C. § [§ ] 1681i(b) and (c).” Appellant’s Brief at 7. The nub of Podell’s argument is that" }, { "docid": "23307472", "title": "", "text": "the completeness or accuracy of any item of information contained in [her] file is disputed by a consumer, and such dispute is directly conveyed to the consumer reporting agency by the consumer, the consumer reporting agency shall within a reasonable period of time reinvestigate and record the current status of that information unless it has reasonable grounds to believe that the dispute by the consumer is frivolous or irrelevant. If after such reinvestigation such information is found to be inaccurate or can no longer be verified, the consumer reporting agency shall promptly delete such information. “Sections 1681n and 1681o of Title 15 respectively provide private rights of action for willful and negligent noncompliance with any duty imposed by the FCRA and allow recovery for actual damages and attorneys’ fees and costs, as well as punitive damages in the ease of willful noncompliance.” Philbin, 101 F.3d at 962. 1. As an initial matter, we reject the suggestion made by TUC that no cause of action lies pursuant to § 1681i(a) on the ground that § 1681i(b) and (c) provide the exclusive remedy when a consumer disputes information that has been placed on her credit report. Those subsections provide that in the event a dispute under subsection (a) is not resolved, “the consumer may file a brief statement setting forth the nature of the dispute,” 15 U.S.C. § 1681i(b), and the statement or a summary must be included in the consumer’s credit report. See 15 U.S.C. § 1681i(e). Subsections (b) and (c) have not been read as providing the exclusive remedy for a consumer in Cushman’s position. See Henson v. CSC Credit Servs., 29 F.3d 280, 286 (7th Cir.1994); Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1160 (11th Cir.1991); Pinner v.Schmidt, 805 F.2d 1258, 1261-62 (5th Cir.1986); see also Guimond, 45 F.3d at 1335 (dictum); cf. Thompson v. San Antonio Retail Merchants Assoc., 682 F.2d 509, 514-15 (5th Cir.1982) (consumer need not pursue remedies under § 1681i before suing under § 1681e). The obligations prescribed by subsections (b) and (c) aré triggered only after “the reinvestigation [pursuant to subsection (a)]" }, { "docid": "23307473", "title": "", "text": "and (c) provide the exclusive remedy when a consumer disputes information that has been placed on her credit report. Those subsections provide that in the event a dispute under subsection (a) is not resolved, “the consumer may file a brief statement setting forth the nature of the dispute,” 15 U.S.C. § 1681i(b), and the statement or a summary must be included in the consumer’s credit report. See 15 U.S.C. § 1681i(e). Subsections (b) and (c) have not been read as providing the exclusive remedy for a consumer in Cushman’s position. See Henson v. CSC Credit Servs., 29 F.3d 280, 286 (7th Cir.1994); Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1160 (11th Cir.1991); Pinner v.Schmidt, 805 F.2d 1258, 1261-62 (5th Cir.1986); see also Guimond, 45 F.3d at 1335 (dictum); cf. Thompson v. San Antonio Retail Merchants Assoc., 682 F.2d 509, 514-15 (5th Cir.1982) (consumer need not pursue remedies under § 1681i before suing under § 1681e). The obligations prescribed by subsections (b) and (c) aré triggered only after “the reinvestigation [pursuant to subsection (a)] does not resolve the dispute.” 15 U.S.C. § 1681i(b). This presupposes that a reasonable reinvestigation has already been completed and the dispute nonetheless remains unresolved. See Guimond, 45 F.3d at 1335. A consumer alleging that no reasonable reinvestigation has taken place has a separate claim pursuant to § 1681i(a). 2. We now turn to the questions of a consumer reporting agency’s obligations pursuant to § 1681i(a) and a plaintiffs burden of proving a claim of negligent noncompliance with that section. TUC contends that § 1681i(a) did not impose on it an obligation to do any more than perform the reinvestigation it performed in this case. That is, TUC believes that when a consumer informs a consumer reporting agency that information contained in her consumer report is inaccurate, the consumer reporting agency is obliged only to confirm the accuracy of the information with the original source of the information. According to TUC, it is never required to go beyond the original source in ascertaining whether the information is accurate. This position has been rejected by the" }, { "docid": "14462007", "title": "", "text": "by a consumer, and such dispute is directly conveyed to the consumer reporting agency ..., the consumer reporting agency shall ... reinves-tigate ... that information.... If after such reinvestigation such information is found to be inaccurate or can no longer be verified, the consumer reporting agency shall promptly delete such information.” 15 U.S.C. § 1681i(a). “If the reinvestigation does not resolve the dispute, the consumer may file a brief statement setting forth the nature of the dispute.” 15 U.S.C. § 1681i(b). “Whenever a statement of dispute is filed, unless there is reasonable grounds to believe that it is frivolous or irrelevant, the consumer reporting agency shall, in any subsequent consumer report containing the information in question, clearly note that it is disputed by the consumer and provide either the consumer’s statement or a clear and accurate codification or summary thereof.” 15 U.S.C. § 1681i(c). Accordingly, a proper cause of action under § 1681i must state the following elements: (1) plaintiff disputed an item of information in his file; (2) any reinvestigation did not resolve this dispute; (3) plaintiff elected to file a statement of dispute; and (4) the statement of dispute was not included with subsequent copies of plaintiffs consumer report. See e.g. Guimond v. Trans Union, 45 F.3d 1329, 1335 (9th Cir.1995). As noted in Section II above, all parties agree that Defendant included Plaintiffs’ statement of dispute in all subsequent copies of Plaintiffs’ consumer report. Thus, all parties agree that the final element of a § 1681i claim cannot be satisfied. Plaintiffs’ dissatisfaction with the placement of their statement within the report will not suffice to state a proper cause of action under § 1681i. For this reason, Defendant is entitled to summary judgment as to this cause of action as well. IV. Plaintiffs’ State and Common Law Claims Plaintiffs have failed to argue and thus appear to have abandoned their state and common law claims. Further, these claims are preempted and barred by the FCRA, which states that: Except as provided in Sections 616 [§ 1681n] and 617 [§ 1681o], no consumer may bring any action or" }, { "docid": "15612514", "title": "", "text": "damages may include damages for humiliation, mental distress, and injury to reputation and creditworthiness, even if the plaintiff has suffered no out-of-pocket losses. Id. at 369 n. 15. B. Reinvestigation — 15 U.S.C. § 1681i(a)(l)(A). If a consumer notifies a credit reporting agency of a dispute concerning the completeness or accuracy of any item of credit information, FCRA requires the agency to reinvestigate free of charge and record the current status of the disputed information, or delete the item within 30 days of receiving the dispute. 15 U.S.C. § 1681i(a)(l)(A). C. Notice of Reinvestigation — 15 U.S.C. § 1681i(a)(6). A credit reporting agency must provide written notice to a consumer of the results of a reinvestigation not later than five business days after the completion of the reinvestigation. 15 U.S.C. § 1681i(a)(6)(A). Further, “[a]s part of, or in addition to, the notice under subparagraph (A),” a con sumer reporting agency must provide to the consumer a statement that the reinvestigation is completed, and a consumer report that is based on the consumer’s file as that file is revised as a result of the reinvestigation. 15 U.S.C. § 1681i(a)(6)(B). D. Defenses. An important issue raised by plaintiff’s motion is what defenses are available to a credit reporting agency that violates one of the provisions of section 1681L In her motion, plaintiff argues that under the facts here there is no defense available to defendant for alleged violations of section 1681i, which is essentially an argument for strict liability. Courts regularly hold that FCRA does not impose strict liability on an agency. Guimond v. Trans Union Credit Information Company, 45 F.3d 1329, 1333 (9th Cir.1995); Dalton v. Capital Associated Industries, Incorporated, 257 F.3d 409, 417 (4th Cir.2001); Pettus v. TRW Consumer Credit Service, 879 F.Supp. 695, 697 (W.D.Texas.1994). In its answer to plaintiffs second amended complaint, defendant asserts as its first affirmative defense that it “followed reasonable procedures to assure maximum possible accuracy of the information concerning plaintiff in preparing consumer reports related to her.” Def. Answer, ¶ 16, p. 4. Section 1681e(b) of FCRA requires the credit reporting agency to “follow" }, { "docid": "15612516", "title": "", "text": "reasonable procedures to assure maximum possible accuracy of the information” in the consumer reports it prepares. 15 U.S.C. § 1681e(b). Because there is not a similar provision in section 1681i dealing with reinvestigation, the question arises as to whether the defense of reasonable procedures is available to a consumer reporting agency in relation to its reinvestigation obligations under section 1681i. I conclude that it is available, and the discussion of plaintiffs motion that follows relies on that conclusion. It is logical that a consumer reporting agency should not be liable under FCRA for an employee’s isolated mistakes in the face of the agency having and enforcing reasonable procedures to fulfill its FCRA obligations. Indeed, the reasonable procedures defense “is designed to protect users of credit information who consistently abide by the law but who, in dealing with hundreds or thousands of instances, ultimately, by commission or omission, inadvertently violate the law in isolated instances”. Mathews v. Government Employees Insurance Co., 23 F.Supp.2d 1160, 1163 (S.D.Cal.1998). There is no reason to restrict the reasonable procedures defense to the initial preparation of credit reports, but not permit the defense as to the maintenance of accurate information through the dispute and reinvestigation provisions of section 1681i(a). The two sections overlap — the reinvestigation process is a part of the agency’s duty to maintain accurate credit reports. Thus, although section 1681i does not contain explicit reasonable procedures provisions, I conclude that such a defense is available with respect to a claim under section 1681i. I have found no cases directly holding that the reasonable procedures defense is available to an agency with respect to its section 1681i obligations. However, there are cases that touch on the issue. For example, the Fifth Circuit discusses updating procedures as part of an agency’s continuing duty under section 1681e(b) to insure accuracy of a credit report. Thompson v. San Antonio Retail Merchants Association, 682 F.2d 509 (5th Cir.1982). As discussed above, I view dispute and reinvestigation as part of the ongoing process of insuring accuracy of credit reports. In Thompson, the court said: Section 1681e(b) does not impose" }, { "docid": "23318658", "title": "", "text": "prescribed by the statute. As relevant here, the notice must include: “(i) a statement that the reinvestigation is completed; (ii) a consumer report that is based upon the consumer’s file as that file is revised as a result of the reinvestigation; [and] ... (iv) a notice that the consumer has the right to add a statement to the consumer’s file disputing the accuracy or completeness of the information.... ” Id. § 1681i(a)(6)(B). “If the reinvestigation does not resolve the dispute,” the consumer may file a statement of his or her dispute with the credit reporting agency. Id. § 1681i(b). “Whenever a statement of dispute is filed,” the credit reporting agency “in any subsequent consumer report containing the information in question, [must] clearly note that it is disputed by the consumer and provide either the consumer’s statement or a clear and accurate codification or summary thereof.” Id. § 1681i(c). This allows “potential creditors [to] have both sides of the story [so that they] can reach an independent determination of how to treat ... specific, disputed” information. Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1160 n. 23 (11th Cir.1991). Cortez claims that Trans Union was obligated to include notice of her dispute about the OFAC alerts in her credit report under § 1681i(c). As noted earlier, in a letter dated May 10, 2005, Trans Union told Cortez, “[0]ur records show that the information you disputed does not currently appear on your TransUnion credit report.” J.A. 545. Thereafter, Trans Union twice issued Cortez’s credit report with the misleading/erroneous OFAC alerts and without noting that Cortez was disputing those alerts. Trans Union does not deny this. Its only argument is that Cortez never explicitly filed a statement of dispute under § 1681i(b) and thus, it had no obligation to include a statement in those subsequent credit reports under § 1681i(c). The argument once again is unconvincing. In Guimond, the court explained that a § 1681i(c) claim requires a showing that (1) the plaintiff disputed an item in her file; (2) any reinvestigation conducted by the consumer reporting agency did not resolve the" }, { "docid": "22425290", "title": "", "text": "statement of dispute is filed, unless there is reasonable grounds to believe that it is frivolous or irrelevant, the consumer reporting agency shall, in any subsequent consumer report containing the information in question, clearly note that it is disputed by the consumer and provide either the consumer’s statement or a clear and accurate codification or summary thereof. The district court granted Trans Union’s motion for summary judgment after adopting Trans Union’s position: “since, under the FCRA there must first be an intervening reinvestigation between the dispute of an item of information and the placement of a statement on file,” Trans Union was not liable absent reinvestigation. In order to interpret § 1681i(c), it is necessary to look at the two preeeeding subsections: (a) Dispute; Reinvestigation. If the completeness or accuracy of any such item of information contained in his file is disputed by a consumer, and such dispute is directly conveyed to the consumer reporting agency ..., the consumer reporting agency shall ... reinvestigate ... that in-formation_ If after such reinvestigation such information is found to be inaccurate or can no longer be verified, the consumer reporting agency shall promptly delete such information.... (b) Statement of dispute. If the reinvestigation does not resolve the dispute, the consumer may file a brief statement setting forth the nature of the dispute. The consumer reporting agency may limit such statements to not more than one hundred words if it provides the consumer with assistance in writing a clear summary of the dispute. Since a statement of dispute under § 1681i(b) need only be filed if the reinvestigation provided for in § 1681i(a) does not resolve the consumer’s complaint, the district court was correct in concluding that reinvestigation is a predicate to the filing of a statement of dispute, and hence that statement’s inclusion in any consumer report. Accordingly, in order to prove Trans Union’s liability under § 1681i(e), Guimond must show that she disputed an item in her file and that any reinvestigation conducted by Trans Union did not resolve the dispute. These two elements are established by Gui-mond’s uncontradicted statements in her" }, { "docid": "23318657", "title": "", "text": "the FCRA. Once Cortez disputed the accuracy of the information in Trans Union’s credit report, Trans Union was obligated to reinvestigate that information. The car dealer’s responsibilities under the USA PATRIOT Act are simply irrelevant to Trans Union’s duty under the FCRA; the district court recognized that when it denied Trans Union’s motion for judgment as a matter of law. 2. Failure to Note Dispute, 15 U.S.C. §§ 1681i(b) and (c). 15 U.S.C. § 1681i sets forth a fairly specific process for disputing information in a credit report. As discussed above, a consumer must first inform the credit agency that s/he disputes the information. 15 U.S.C. § 1681i(a)(l). The credit reporting agency must reinvestigate promptly based on that dispute. The agency must then appropriately respond to the dispute based on the results of its reinvestigation. This includes deleting or modifying disputed information when appropriate. Id. § 1681i(a)(5). The credit reporting agency must also notify the consumer promptly of the results of the reinvestigation in writing. Id. § 1681i(a)(6). The minimum contents of that notice are prescribed by the statute. As relevant here, the notice must include: “(i) a statement that the reinvestigation is completed; (ii) a consumer report that is based upon the consumer’s file as that file is revised as a result of the reinvestigation; [and] ... (iv) a notice that the consumer has the right to add a statement to the consumer’s file disputing the accuracy or completeness of the information.... ” Id. § 1681i(a)(6)(B). “If the reinvestigation does not resolve the dispute,” the consumer may file a statement of his or her dispute with the credit reporting agency. Id. § 1681i(b). “Whenever a statement of dispute is filed,” the credit reporting agency “in any subsequent consumer report containing the information in question, [must] clearly note that it is disputed by the consumer and provide either the consumer’s statement or a clear and accurate codification or summary thereof.” Id. § 1681i(c). This allows “potential creditors [to] have both sides of the story [so that they] can reach an independent determination of how to treat ... specific, disputed” information." }, { "docid": "8366799", "title": "", "text": "to evaluate their creditworthiness. § 1681(b). Thus, it allows consumers to recover compensatory damages and costs, including a reasonable attorney’s fee, in the event that a consumer reporting agency negligently fails to comply with any of the FCRA’s requirements. § 1681o. If the consumer reporting agency’s non-compliance with the FCRA is willful, the consumer may also recover punitive damages. § 1681n. In the instant case, Ms. Cushman alleges that Trans Union acted in violation of § 1681i, which provides, in relevant part, as follows: If the completeness or accuracy of any item of information contained in his file is disputed by a consumer, and such dispute is directly conveyed to the consumer reporting agency by a consumer, the consumer reporting agency shall within a reasonable period of time reinvestigate and record the current status of that information---- If after such reinvestigation such information is found to be inaccurate or can no longer be verified, the consumer reporting agency shall promptly delete such information. 15 U.S.C. § 1681i(a). The question the court must consider in a case brought pursuant to § 1681i(a) is “whether the credit reporting agency could have discovered an error in a particular report through a reasonable investigation.” Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1160 (11th Cir. 1991). The scope of the agency’s duty to reinvestigate .depends upon (1) the cost of verifying the accuracy of the source versus the potential harm to the consumer; and (2) the extent of the information the credit reporting agency possesses. Henson v. CSC Credit Servs., 29 F.3d 280, 287 (7th Cir.1994). Thus, a credit reporting agency generally has no duty to reinvestigate unless and until the consumer notifies it that the credit report contains inaccurate information. Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 474 (2d Cir.1995) (citations omitted). Once the credit reporting agency receives such notice, however, it may be required to conduct a more thorough investigation, one that requires it to make inquiries beyond the original source of the information. See Henson, 29 F.3d at 286-87 (“When a credit reporting agency receives such notice, it" }, { "docid": "22425289", "title": "", "text": "if there is no source for the disputed information in the consumer credit agency’s files, the agency is required to either investigate the dispute or delete the unsupported information. If a consumer credit agency can satisfy the requirements of § 1681g merely by claiming ignorance, the entire provision would be rendered a nullity. Trans Union argues that it was not required to identify the source of the erroneous social security number and alias because these items were mere identifying indicia, the genesis of which need not be disclosed under § 1681g. Not only is there no support for this proposition, but it does not dispose of Guimond’s claims with respect to the source of the misinformation regarding a Saks Fifth Avenue Credit card. Accordingly, we reverse the district court’s grant of summary judgment on Guimond’s claims under this provision and remand the issue for application of the facts to this legal standard. III. Violations of 15 U.S.C. § 1681i(c) 15 U.S.C. § 1681i(c) states: (c) Notification of consumer dispute in subsequent consumer reports. Whenever a statement of dispute is filed, unless there is reasonable grounds to believe that it is frivolous or irrelevant, the consumer reporting agency shall, in any subsequent consumer report containing the information in question, clearly note that it is disputed by the consumer and provide either the consumer’s statement or a clear and accurate codification or summary thereof. The district court granted Trans Union’s motion for summary judgment after adopting Trans Union’s position: “since, under the FCRA there must first be an intervening reinvestigation between the dispute of an item of information and the placement of a statement on file,” Trans Union was not liable absent reinvestigation. In order to interpret § 1681i(c), it is necessary to look at the two preeeeding subsections: (a) Dispute; Reinvestigation. If the completeness or accuracy of any such item of information contained in his file is disputed by a consumer, and such dispute is directly conveyed to the consumer reporting agency ..., the consumer reporting agency shall ... reinvestigate ... that in-formation_ If after such reinvestigation such information is found" }, { "docid": "15612519", "title": "", "text": "standard applied in cases addressing reinvestigations under § 1681i(a)” to determine whether the defendant failed to comply with an investigation requirement under another section of FCRA, section 1681s — 2(b)(1)(A) (duties of furnishers of information upon notice of dispute). 103 F.Supp.2d at 1143. The court noted that “[c]ourts interpreting § 1681i(a) have imposed upon credit reporting agencies a duty to conduct a reasonable reinvestigation.” Id. There are other cases that touch on the relationship between sections 1681i and 1681e(b). See, e.g., Stevenson v. TRW, Inc., 987 F.2d 288 (5th Cir.1993) (credit reporting agency’s reinvestigation did not violate section 1681e(b) even though inaccurate information continued to appear on consumer’s reports); Yelder v. Credit Bureau of Montgomery, L.L.C., 131 F.Supp.2d 1275 (M.D.Ala.2001) (court rejected “maximum accuracy” reasonableness standard of section 1681e(b) in favor of lower standard to be used to evaluate defendant’s section 1681i procedures for reinvestigations). The reasonable procedures defense creates a jury question. Guimond, 45 F.3d at 1333; Dalton v. Capital Associated Industries, Incorporated, 257 F.3d 409, 417 (4th Cir.2001); Mathews v. Government Employees Insurance Co., 23 F.Supp.2d at 1164. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff moves for partial summary judgment on her claims that defendant negligently violated the provisions of section 1681i(a) of FCRA relating to reinvestigations of accounts disputed by a consumer. FCRA imposes liability on a consumer reporting agency for negligent failure to comply “with any requirement imposed” by the Act. 15 U.S.C. § 1681o. A. Reinvestigation — 15 U.S.C. § 1681i(a)(l)(A). 1. Plaintiff’s Arguments. Plaintiff argues that defendant violated section 1681i(a)(l)(A) by failing to reinves-tigate the GTE Mobil account within 30 days of her first dispute of the account that defendant received on March 12,1999. Plaintiff argues that under FCRA, a credit reporting agency has no discretion whether to reinvestigate once it receives notification of a dispute from a consumer. The agency must complete the investigation within 30 days. 15 U.S.C. § 1681i(a)(2). In this case, defendant did not even begin to reinvestigate until plaintiff disputed the GTE Mobil account a second time on April 19, 1999. Thus, plaintiff contends that defendant failed to comply" }, { "docid": "23307479", "title": "", "text": "to reap profits through the collection and dissemination of credit information, bear “grave responsibilities,” 15 U.S.C. § 1681(a)(4), to ensure the accuracy of that information. The “grave responsibilit[y]” imposed by § 1681i(a) must consist of something more than merely parroting information received from other sources. Therefore, a “reinvestigation” that merely shifts the burden back to the consumer and the credit grantor cannot fulfill the obligations contemplated by the statute. In addition to these observations, we note that TUC’s reading of § 1681i(a) would require it only to replicate the efforts it must undertake in order to comply with § 1681e(b). Such a reading would render the two sections largely duplicative of each other. We strive to avoid a result that would render statutory language superfluous, meaningless, or irrelevant. See Sekula v. F.D.I.C., 39 F.3d 448, 454 n. 14 (3d Cir.1994); Pennsylvania Dept. of Public Welfare v. United States Dept. of Health and Human Servs., 928 F.2d 1378, 1385 (3d Cir.1991). TUC contends that Podell v. Citicorp Diners Club, Inc., 112 F.3d 98 (2d Cir.1997), compels that we affirm. TUC is mistaken. In Podell, after being notified by a consumer of a dispute, a consumer reporting agency had performed the same sort of perfunctory reinvestigation that TUC performed here. See id. at 101-02. As here, the consumer sued the consumer reporting agency pursuant to 15 U.S.C. § 1681i. See id. However, the consumer in Podell did not contend that the extent,of the reinvestigation was unreasonably narrow, as Cushman argues here. Rather, the consumer’s position in that case was that the consumer reporting agency never sent him an updated credit report or any other notice that a reinvestigation had been performed. See id. Therefore, he argued, he never had an opportunity to place a statement of dispute in his file pursuant to § 1681i(b) and (c). See id. As the consumer in Podell never took issue with the reasonableness of the scope of the consumer reporting agency’s reinvestigation, the Court of Appeals for the Second Circuit had no occasion to address this issue. We hold that in order to fulfill its obligation" }, { "docid": "495229", "title": "", "text": "04-1840-PHX-SMM, 2007 WL 735564, *5-6 (DAriz. Mar. 5, 2007) (noting the difference between § 1681e(b) and § 1681i); see also Henson v. CSC Credit Servs., 29 F.3d 280, 286-87 (7th Cir.1994) (affirming the dismissal of a § 1681e(b) claim on the ground that “a credit reporting agency may initially rely on public court documents, because to require otherwise would be burdensome and inefficient,” but reversing dismissal of a § 1681i claim because “such exclusive reliance may not be justified once the credit reporting agency receives notice that the consumer disputes information contained in his credit report. When a credit reporting agency receives such notice, it can target its resources in a more efficient manner and conduct a more thorough investigation”). Since Grigoryan proffers no evidence of inadequacies in defendants’ internal databases, he has failed to raise triable issues of fact concerning his § 1681e(b) and § 1785.14(b) claims. Because a consumer reporting agency-receiving a facially credible report from a source that it believes to be reputable is not liable under § 1681e(b) or § 1785.14(b) merely because the report contains inaccurate information, and because Grigoryan has failed to adduce any evidence that BOA, Sequoia, and CMI are not reputable sources or that any of the alleged inaccurate reporting resulted from defendants’ failure to maintain and operate their internal databases in a reasonable manner, the court grants summary judgment in defendants’ favor on Grigoryan’s § 1681e(b) and § 1785.14(b) claims. D. Whether Triable Issues Preclude Granting Summary Judgment on Grigoryan’s § 1681i and § 1785.16 Claims Sections 1681i and 1785.16 obligate credit reporting agencies to reinvestigate disputes when the completeness or accuracy of information has been challenged. Section 1681i(l)(A) provides: “[I]f the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the [CRA] shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item" }, { "docid": "19885555", "title": "", "text": "her consumer report, 15 U.S.C. § 1681i(a) requires consumer reporting agencies to “conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate.” The magistrate judge reasoned that “[a] necessary element of Plaintiffs [§ 1681i] claim is that the information Trans Union reported was inaccurate.” Deandrade v. Trans Union, LLC, No. 1:04-cv-00534, slip op. at 9 (D.R.I. Nov. 29, 2006)(unpublished). This court has yet to opine on the question whether a plaintiff must show that the disputed information contained in a consumer report is inaccurate in order to prevail on a § 1681i FCRA claim. The magistrate judge’s recommended decision and Trans Union’s brief on appeal cite a string of cases in support of the proposition that a showing of inaccuracy is essential. The relevant language in those eases, however, largely addresses claims brought under § 1681e(b), not § 1681i; indeed, in most of the cases cited, either no § 1681i claim was asserted or the question of accuracy is not addressed directly. See, e.g., Dalton v. Capital Associated Indus., 257 F.3d 409, 415 (4th Cir.2001)(holding that “a consumer reporting agency violates § 1681e(b) if (1) the consumer report contains inaccurate information and (2) the reporting agency did not follow reasonable procedures to assure maximum possible accuracy”); Spence v. TRW, 92 F.3d 380, 382 (6th Cir.1996)(holding that plaintiff could not prevail on his § 1681e(b) claim “without proving the information in question was inaccurate”); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir.1994)(holding that “[i]n order to state a claim under 15 U.S.C. § 1681e(b), a consumer must sufficiently allege that a credit reporting agency prepared a report containing ‘inaccurate’ information”)(emphasis added) (citations omitted); Wadley v. Ford Motor Credit Co., 397 F.Supp.2d 781, 783 (E.D.Va.2005)(plaintiff alleged claim under § 1681s-2(a), “which prohibits an entity from furnishing information relating to a consumer to a consumer reporting agency if ‘(i) the [entity] has been notified by the consumer ... that specific information is inaccurate; and (ii) the information is, in fact, inaccurate.’ ”)(emphasis in original); Dauster v. Household Credit Servs., Inc., 396 F.Supp.2d 663, 664 (E.D.Va.2005)(where plaintiff had conceded" }, { "docid": "16779061", "title": "", "text": "additional duties on furnishers of information, but this new subparagraph is not relevant to the case at bar. . But see Carney v. Experian Info. Solutions, Inc., 57 F.Supp.2d 496, 501 (W.D.Tenn.1999) (holding that a consumer does not have private right of action under § 1681s-2(b)). . 15 U.S.C. § 1681o provides that \"[a]ny person who is negligent in failing to comply with any requirement imposed under this sub-chapter with respect to any consumer is liable to that consumer in an amount equal to the sum of (1) any actual damages sustained by the consumer as a result of that failure; (2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys fees as determined by the court.\" . 15 U.S.C. § 1681n provides any consumer a cause of action against any person who willfully fails to comply with any requirement imposed under the FCRA and provides for payment of actual damages or statutory damages up to $1,000 as well as such amount of punitive damages as the court may allow. . 15 U.S.C. § 1681i(a) provides in pertinent part that \"[i]f the completeness or accuracy of any item of information contained in a consumer’s file at a credit reporting agency is disputed by the consumer and the consumer notifies the agency directly of such dispute, the agency shall reinvestigate ... and record the current status of the disputed information, or delete the item from the file....” Most courts interpret § 1681i(a) to impose a duty on credit reporting agencies to conduct a reasonable investigation. Bruce, 103 F.Supp.2d at 1143 (citing Cushman v. Trans Union Corp., 115 F.3d 220, 224-25 (3rd Cir.1997); Henson v. CSC Credit Services, 29 F.3d 280, 286-87 (7th Cir.1994); Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1160 (11th Cir.1991); Pinner v. Schmidt, 805 F.2d 1258, 1262 (5th Cir.1986))." }, { "docid": "14462006", "title": "", "text": "dispute.” 15 U.S.C. § 1681i(b). Once such a statement is filed, the agency must provide the statement or a summary of it “in any subsequent consumer report containing the information in question,” provided, however, that the statement need not be reported if “there is [sic] reasonable grounds to believe that it is frivolous or irrelevant.” 15 U.S.C. § lGSlifc). Thus, it is clear that Plaintiffs state no valid claim of “inaccuracy” in Defendant’s reporting of their credit history. Having admitted to their late payments and to twice filing for bankruptcy, Plaintiffs are left with no claims of actual inaccuracy, and thus cannot satisfy the first element of a § 1681e(b) claim. Accordingly, this Court finds that the information reported is complete and accurate, and that Defendant is entitled to summary judgment as to this cause of action. III. Plaintiffs’ § 1681i Fair Credit Reporting Act Claim Plaintiffs’ second FCRA claim arises under Section 1681i. This section, discussed above, states that “if the completeness or accuracy of any ... information contained in his file is disputed by a consumer, and such dispute is directly conveyed to the consumer reporting agency ..., the consumer reporting agency shall ... reinves-tigate ... that information.... If after such reinvestigation such information is found to be inaccurate or can no longer be verified, the consumer reporting agency shall promptly delete such information.” 15 U.S.C. § 1681i(a). “If the reinvestigation does not resolve the dispute, the consumer may file a brief statement setting forth the nature of the dispute.” 15 U.S.C. § 1681i(b). “Whenever a statement of dispute is filed, unless there is reasonable grounds to believe that it is frivolous or irrelevant, the consumer reporting agency shall, in any subsequent consumer report containing the information in question, clearly note that it is disputed by the consumer and provide either the consumer’s statement or a clear and accurate codification or summary thereof.” 15 U.S.C. § 1681i(c). Accordingly, a proper cause of action under § 1681i must state the following elements: (1) plaintiff disputed an item of information in his file; (2) any reinvestigation did not resolve this" }, { "docid": "5895959", "title": "", "text": "Information Solutions, Inc., 57 F.Supp.2d 496, 502 (W.D.Tenn.1999)(consumers do not have a private cause of action under § 1681s-2(b)). Likewise, § 1681n provides a cause of action for willful violations, entitling a consumer to recover punitive damages in addition to the damages available for negligent noncompliance. Campbell, 90 F.Supp.2d at 756. The FCRA does not provide any indication as to the level of investigation required under § 1681s-2(b)(l). First U.S.A. does not cite, nor does my independent research disclose, any case law defining the level of investigation required under this section. Section 1681s-2(b)’s investigation requirement for furnishers of credit information, however, is analogous to the requirement imposed upon credit reporting agencies under § 1681i(a) to re-investigate a consumer’s dispute regarding information contained in his credit report: If the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly of such dispute, the agency shall rein-vestigate ... and record the current status of the disputed information, or delete the item from the file.... 15 U.S.C. § 1681i(a). Courts interpreting § 1681i(a) have imposed upon credit reporting agencies a duty to conduct a reasonable reinvestigation. See Cushman v. Trans Union Corp., 115 F.3d 220, 224-25 (3rd Cir.1997); Henson v. CSC Credit Services, 29 F.3d 280, 286-87 (7th Cir.1994); Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1160 (11th Cir.1991); Pinner v. Schmidt, 805 F.2d 1258, 1262 (5th Cir.1986). Factors to be considered in determining whether a credit reporting agency has conducted a reasonable investigation include: (1) whether the consumer has alerted the agency that the initial source of the information may be unreliable or if the agency knows or should know that the source is unreliable, and (2) the cost of verifying the accuracy of the source versus the possible harm of reporting inaccurate information. Cushman, 115 F.3d at 225; Henson, 29 F.3d at 287; Whether a reasonable investigation has been conducted is generally a question of fact for the jury. Id. I will adopt the reasonableness standard applied in cases" }, { "docid": "22425291", "title": "", "text": "to be inaccurate or can no longer be verified, the consumer reporting agency shall promptly delete such information.... (b) Statement of dispute. If the reinvestigation does not resolve the dispute, the consumer may file a brief statement setting forth the nature of the dispute. The consumer reporting agency may limit such statements to not more than one hundred words if it provides the consumer with assistance in writing a clear summary of the dispute. Since a statement of dispute under § 1681i(b) need only be filed if the reinvestigation provided for in § 1681i(a) does not resolve the consumer’s complaint, the district court was correct in concluding that reinvestigation is a predicate to the filing of a statement of dispute, and hence that statement’s inclusion in any consumer report. Accordingly, in order to prove Trans Union’s liability under § 1681i(e), Guimond must show that she disputed an item in her file and that any reinvestigation conducted by Trans Union did not resolve the dispute. These two elements are established by Gui-mond’s uncontradicted statements in her affidavit — she informed Trans Union that her report contained inaccuracies and Trans Union failed to delete these inaccuracies. However, Guimond must also show that she filed a statement of dispute and that it was not included with subsequent copies of her consumer report. Nowhere has Guimond claimed that she filed a statement of dispute. Indeed, Guimond’s complaint seems to state either that 1) Trans Union did not perform any reinvestigation, or 2) after discovering the disputed information was inaccurate, Trans Union did not remove the information from her file — a claim more properly brought under § 1681i(a). As a result, she has not established Trans Union’s liability under this section. See Mirocha v. TRW, Inc., 805 F.Supp. 663, 670 (S.D.Ind.1992) (no duty to include a statement of dispute unless such statement was filed by consumer with agency); see also Boothe, 768 F.Supp. at 438 (same). Thus, we affirm the district court’s resolution of Appellant’s claims under 15 U.S.C. § 1681i(c). IV. Violations of CCRAA, § 1785.1 et seq. The CCRAA mirrors the provisions" } ]

[ { "docid": "11994988", "title": "", "text": "omitted). Relying upon Denney v. BDO Seidman, LLP, 412 F.3d 58, 70 (2d Cir. 2005), which was decided after oral argument had taken place on Amex’s motion, Judge Pauley held that “allegations of concerted misconduct between a signatory and a non-signatory could establish a close relationship between them” sufficient to invoke the doctrine of equitable estoppel. Id. at *5. Thus, “[h]aving alleged that American Express acted in concert with [the Issuing Banks], Plaintiffs cannot now escape the consequences of those allegations by arguing that American Express and [the Issuing Banks] lack the requisite close relationship or that their Sherman Act claims against American Express are not connected to that relationship.” Id. (internal quotation marks omitted). Judge Pauley proceeded to “consider whether arbitration can be compelled in light of Plaintiffs claim that the [arbitration] clauses were imposed pursuant to an illegal antitrust conspiracy.” Id. at *7. He began with the familiar rule of Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), to the effect that “[w]hen a party challenges the validity of an arbitration clause directly, ‘the federal court may proceed to adjudicate it.’ ” Id. Finding that the plaintiffs had “submitted evidence to support their claim” that the arbitration clauses were the product of an illegal antitrust conspiracy, Judge Pauley concluded that they were entitled to a trial on this issue and that Amex’s motion to immediately compel arbitration therefore must be denied. Id. at *8-10. The instant appeals followed Judge Pauley’s denial of Amex’s motion for reconsideration of this holding. See Ross v. American Express Co., No. 04 Civ. 5723, 2006 WL 2707393 (S.D.N.Y. Sept. 21, 2006). ANALYSIS A. Jurisdiction. To reiterate, although the district court ruled that Amex could potentially avail itself of the arbitration clauses contained in the cardholder agreements, it denied Amex’s motion to immediately compel arbitration, brought pursuant to Section 4 of the FAA, because it further held that a trial must first be held to determine whether the arbitration clauses were validly made. Although we ordinarily have jurisdiction to review only final" } ]

[ { "docid": "12975850", "title": "", "text": "“MDL Proceeding”). The MDL Proceeding involves claims against the Networks and the MDL Defendant Banks (collectively, the “MDL Defendants”). Plaintiffs allege that the MDL Defendants conspired to fix foreign currency conversion fees charged to cardholders. (Complaint dated July 22, 2004 (“Compl.”) ¶ 1.) Drawing on the conspiracy allegations in the MDL Proceeding, Plaintiffs initiated this action on July 22, 2004. The Complaint alleges that against American Express “actively conspired” with the MDL Defendants to fix currency conversion fees. (Compl.lffl 1-3.) Although not at issue in this renewed class certification motion, Plaintiffs also assert that American Express “conspired with the MDL Defendant Banks to include compulsory arbitration clauses in their respective cardholder agreements.” (ComplV 3.) This second claim concerning arbitration clauses is also the subject of another related action Ross v. Bank of America, 05 Civ. 7116(WHP), against the MDL Defendant Banks and others, pending before this Court. On September 27, 2005, this Court granted class certification on the arbitration clause conspiracy claim and also ruled that American Express could have the benefit of arbitration clauses in the cardholder agreements between the MDL Defendant Banks and the cardholders under the doctrine of equitable estoppel. Amex I, 2005 WL 2364969, at *11. However, this Court determined that Plaintiffs were entitled to a jury trial on the validity of the arbitration clauses before arbitration could be compelled. Concomitantly, this Court held that certification of a damages class for the foreign currency conversion fee claim was premature until the issue of arbitration was resolved. Amex I, 2005 WL 2364969, at *10. On September 21, 2006, this Court denied American Express’s motion for reconsideration. Amex II, 2006 WL 2707393. American Express appealed this Court’s decisions regarding arbitration and class certification. Plaintiffs cross-appealed this Court’s application of the doctrine of equitable estoppel. The Court of Appeals denied American Express’s petition regarding the class certification ruling, but agreed to hear the appeals regarding arbitration. On October 21, 2008, the Court of Appeals reversed this Court’s memorandum and order in part and concluded that American Express could not enjoy the benefit of the arbitration clauses under the doctrine" }, { "docid": "12975851", "title": "", "text": "in the cardholder agreements between the MDL Defendant Banks and the cardholders under the doctrine of equitable estoppel. Amex I, 2005 WL 2364969, at *11. However, this Court determined that Plaintiffs were entitled to a jury trial on the validity of the arbitration clauses before arbitration could be compelled. Concomitantly, this Court held that certification of a damages class for the foreign currency conversion fee claim was premature until the issue of arbitration was resolved. Amex I, 2005 WL 2364969, at *10. On September 21, 2006, this Court denied American Express’s motion for reconsideration. Amex II, 2006 WL 2707393. American Express appealed this Court’s decisions regarding arbitration and class certification. Plaintiffs cross-appealed this Court’s application of the doctrine of equitable estoppel. The Court of Appeals denied American Express’s petition regarding the class certification ruling, but agreed to hear the appeals regarding arbitration. On October 21, 2008, the Court of Appeals reversed this Court’s memorandum and order in part and concluded that American Express could not enjoy the benefit of the arbitration clauses under the doctrine of equitable estoppel. Amex IV, 547 F.3d at 148. The MDL Defendants entered into a Settlement Agreement with Class Counsel on July 20, 2006 (the “Settlement”). The Settlement provides for the payment of $336 million in full settlement of the claims in the MDL Proceeding. This Court granted preliminary approval on November 20, 2006. See CCF VII, 2006 WL 3247396. After the notice program was re-engineered at the Court’s direction, more than 10 million claims with a face value of between $557 to $577 million were filed. CCF VIII, 263 F.R.D. at 119. On October 22, 2009, this Court granted final approval. See CCF VIII, 263 F.R.D. 110. II. Plaintiffs ’ Factual Allegations VISA, MasterCard and American Express are the three largest general purpose credit card networks. (Comply 18.) In 2003, over 90% of all purchases with general purpose credit cards were made with VISA, MasterCard or American Express cards. (CompU 18.) At the time this lawsuit was filed, the Networks and American Express operated differently. VISA and MasterCard were associations “created, owned, governed, and" }, { "docid": "17094172", "title": "", "text": "New York Personal Property Law. . Familiarity with this Court's prior Memoranda and Orders is presumed. See In re Currency Conversion Fee Antitrust Litig., No. MDL 1409, 2003 WL 22097502 (S.D.N.Y. Sept.10, 2003); see also In re Currency Conversion Fee Antitrust Li-tig., No. MDL 1409, M 21-95, 2004 WL 2327938 (S.D.N.Y. Oct.15, 2004); In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d 385 (S.D.N.Y.2003). . To buttress his argument, Plaintiff repeatedly cites to Schwartz v. Visa International Corporation, No. 822404-4, 2003 WL 1870370 (Cal. Sup. Ct. Alameda Cty. Apr. 7, 2003). (Pl. Mem. at 1-5, 12; Reply Mem. at 1, 7-9, 11.) Schwartz, however, was not a Rule 23 class action, but instead involved a suit brought by a plaintiff as a private attorney general under California's consumer laws. See Schwartz, No. 822404-4, 2003 WL 1870370, at *2 (noting that \"Plaintiff's claims at trial were founded exclusively on California’s Unfair Competition Law”); see also Schwartz v. Visa Int’l Corp., No. C 00-3955 THE, 2001 WL 30535, at *1 (N.D.Cal. Jan.9, 2001). Because California's consumer laws do not resemble Rule 23, Schwartz has no application here. . In view of this Court’s conclusion that individual questions concerning the substantive laws of multiple states predominate, Citibank's other arguments against class certification need not be addressed. . This lawsuit was filed on October 31, 2002." }, { "docid": "20417657", "title": "", "text": "257, 263-64 (2007) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)); accord Thompson, 219 F.R.D. at 100 (quoting Silvestri, 271 F.3d at 590 (internal citations omitted)); see also Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir.2009) (citations omitted); Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir.2006) (citing Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1337-38 (9th Cir.1985)); Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir.2005); In re NTL, Inc. Secs. Litig., 244 F.R.D. 179, 191 (S.D.N.Y.2007) (citing Phoenix Four, Inc. v. Strategic Res. Corp., No. 05 Civ. 4837(HB), 2006 WL 1409413, at *3 (S.D.N.Y. May 23, 2006)). Second, if the spoliation violates a specific court order or disrupts the court’s discovery plan, sanctions also may be imposed under Fed. R.Civ.P. 37. United Med. Supply Co., 77 Fed Cl. at 264, cited in Sampson, 251 F.R.D. at 178. If spoliation has occurred, then a court may impose a variety of sanctions, ranging from dismissal or judgment by default, preclusion of evidence, imposition of an adverse inference, or assessment of attorney’s fees and costs. In re NTL, Inc. Secs. Litig., 244 F.R.D. at 191 (citing Chan v. Triple 8 Palace, Inc., No. 03CIV6048(GEL)(JCF), 2005 WL 1925579, at *4 (S.D.N.Y. Aug. 11, 2005)). Goodman has failed to identify any court order violated by Tracer/PSI in its alleged spoliation of evidence; accordingly, the Court’s ability to impose any sanction must derive from its inherent authority to regulate the litigation process, rather than from any sanction prescribed by the Federal Rules of Civil Procedure. See, e.g., Sampson, 251 F.R.D. at 177-79 (noting defendant’s alleged failure to preserve emails and electronic memoranda “implicate[d] the court’s inherent authority to impose sanctions because ... [the] defendant violated the general duty to preserve relevant evidence, rather than violating a specific court order”). III. Timeliness of a Spoliation Motion Preliminarily, Tracer/PSI asserts that Goodman’s Motion should be denied as untimely. Citing Media Communications, Inc. v. Multimedia, Sign Up, Inc., No. 99 C 5009, 1999 WL 1212652, at *4 (N.D.Ill. Dec. 14, 1999), Tracer/PSI" }, { "docid": "19301412", "title": "", "text": "MEMORANDUM & ORDER WILLIAM H. PAULEY III, District Judge. The class actions in this multi-district litigation assert violations of the Sherman Act, 15 U.S.C. § 1 et seq., the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., the Electronic Funds Transfer Act, 15 U.S.C. § 1693 et seq., and the South Dakota Deceptive Trade Practices Act (“DTPA”), arising from an alleged price-fixing conspiracy among VISA, MasterCard, and their member banks (the “Bank Defendants”) related to foreign currency conversion fees. Plaintiffs move for final approval of a proposed settlement with Defendants pursuant to Fed. R.Civ.P. 23(e). Class Counsel move for attorney’s fees, and incentive awards for the class representatives. Various members of the class object. For the reasons set forth below, Plaintiffs’ motion is granted, Class Counsel’s motions are granted in part and denied in part, and the objections are overruled. The complex factual and procedural background underlying these actions is set forth in this Court’s prior opinions, familiarity with which is presumed. See In re Currency Conversion Fee Antitrust Litig., No. M 21-95, 2006 WL 3247396 (S.D.N.Y. Nov.8, 2006); In re Currency Conversion Fee Antitrust Litig., No. M 21-95, 2005 WL 3304605 (S.D.N.Y. Dec.7, 2005); In re Currency Conversion Fee Antitrust Litig., No. M 21-95, 2005 WL 1871012 (S.D.N.Y. Aug. 9, 2005); In re Currency Conversion Fee Antitrust Litig., 229 F.R.D. 57 (S.D.N.Y.2005); In re Currency Conversion Fee Antitrust Litig., 361 F.Supp.2d 237 (S.D.N.Y.2005); In re Currency Conversion Fee Antitrust Litig., 224 F.R.D. 555 (S.D.N.Y.2004); In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d 385 (S.D.N.Y.2003). BACKGROUND I. The Underlying Allegations This litigation challenges the currency conversion practices of the consumer payment card industry. To provide context for the Settlement, the Third Consolidated Amended Class Action Complaint (the “Complaint” or “Compl.”) is summarized below. A. VISA and MasterCard Associations Defendants VISA and MasterCard are the two largest general purpose card networks in the world and dominate the market for debit cards. (ComplV 90.) VISA and MasterCard were joint ventures or, as they called themselves, “membership associations” that were created, owned, governed, and operated by their member banks." }, { "docid": "19661621", "title": "", "text": "District of New York as In re Currency Conversion Fee Antitrust Litig., MDL No. 1409. Id. Subsequent to consolidation, the district court granted, in part, a motion by the MDL Defendants to compel arbitration. To the extent relevant here, the court held that: (i) cardholders whose cardholder agreements contained arbitration clauses as of the date on which they became putative class members were subject to arbitration; (ii) those cardholders were also required to arbitrate their claims against non-signatory banks under the doctrine of equitable estoppel; and (iii) the cardholders’ claimed defense against arbitration— that the arbitration agreements were unenforceable as the result of an illegal conspiracy — could not defeat a motion to compel arbitration where the complaint had not alleged an antitrust claim based on that defense. See In re Currency Conversion Fee Antitrust Litig., 361 F.Supp.2d 237, 258-59, 263-64 (S.D.N.Y.2005). In July 2004, appellees filed a class action complaint against appellants Amex in which they asserted the same claims raised in the MDL suit: that appellants had conspired with the MDL Defendants to fix fees for transactions in foreign currencies. Ross, 2005 WL 2364969, *1-2 (S.D.N.Y.2005). Appellees also alleged that appellants had conspired with the MDL Defendants to “impose compulsory arbitration clauses on [their] cardholders and the cardholders of [their] co-conspirators” in order “to suppress competition and deprive their cardholders of a meaningful choice concerning the arbitration of disputes.” (CompLIHI 86, 88) In April 2005, appellants moved, pursuant to 9 U.S.C. §§ 3 and 4, to dismiss the complaint and compel arbitration or, in the alternative, stay the proceedings pending arbitration. Appellants acknowledged that they were not a signatory to any express arbitration agreement with the appellees. Nevertheless, they argued that the arbitration clauses contained in the cardholder agreements with the MDL Defendants bound appellees to arbitrate their dispute with appellants in accordance with those clauses under principles of equitable estop-pel. The district court agreed with appellants. .Ross, 2005 WL 2364969, at *4-5. In particular, the district court found that the “claims against [appellants] are ‘inextricably intertwined’ with the cardholder agreements” with the MDL Defendants, which contained the" }, { "docid": "11994987", "title": "", "text": "directly from the cardmember agreements that Plaintiffs signed with [the Issuing Banks]. Those agreements contain mandatory arbitration provisions. Plaintiffs should not be permitted to circumvent them obligation to arbitrate claims relating to those cardmember agreements through the device of a separate lawsuit against American Express. Because Plaintiffs’ claims against American Express arise out of, and are intertwined with, the cardmember agreements, the doctrine of equitable estoppel requires Plaintiffs to arbitrate those claims, even though American Express is not a party to those agreements. The district court agreed with this contention. Quoting JLM Indus., Inc. v. Stolt-Nielsen S.A., 387 F.3d 163, 176 (2d Cir.2004), Judge Pauley noted that “ ‘a non-signatory to an arbitration agreement may compel a signatory to that agreement to arbitrate a dispute where a careful review ... discloses that the issues the non-signatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.’ ” Ross v. American Express Co., No. 04 Civ. 5723, 2005 WL 2364969, at *4 (S.D.N.Y. Sept. 27, 2005) (internal quotation marks omitted). Relying upon Denney v. BDO Seidman, LLP, 412 F.3d 58, 70 (2d Cir. 2005), which was decided after oral argument had taken place on Amex’s motion, Judge Pauley held that “allegations of concerted misconduct between a signatory and a non-signatory could establish a close relationship between them” sufficient to invoke the doctrine of equitable estoppel. Id. at *5. Thus, “[h]aving alleged that American Express acted in concert with [the Issuing Banks], Plaintiffs cannot now escape the consequences of those allegations by arguing that American Express and [the Issuing Banks] lack the requisite close relationship or that their Sherman Act claims against American Express are not connected to that relationship.” Id. (internal quotation marks omitted). Judge Pauley proceeded to “consider whether arbitration can be compelled in light of Plaintiffs claim that the [arbitration] clauses were imposed pursuant to an illegal antitrust conspiracy.” Id. at *7. He began with the familiar rule of Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), to the effect" }, { "docid": "19301413", "title": "", "text": "21-95, 2006 WL 3247396 (S.D.N.Y. Nov.8, 2006); In re Currency Conversion Fee Antitrust Litig., No. M 21-95, 2005 WL 3304605 (S.D.N.Y. Dec.7, 2005); In re Currency Conversion Fee Antitrust Litig., No. M 21-95, 2005 WL 1871012 (S.D.N.Y. Aug. 9, 2005); In re Currency Conversion Fee Antitrust Litig., 229 F.R.D. 57 (S.D.N.Y.2005); In re Currency Conversion Fee Antitrust Litig., 361 F.Supp.2d 237 (S.D.N.Y.2005); In re Currency Conversion Fee Antitrust Litig., 224 F.R.D. 555 (S.D.N.Y.2004); In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d 385 (S.D.N.Y.2003). BACKGROUND I. The Underlying Allegations This litigation challenges the currency conversion practices of the consumer payment card industry. To provide context for the Settlement, the Third Consolidated Amended Class Action Complaint (the “Complaint” or “Compl.”) is summarized below. A. VISA and MasterCard Associations Defendants VISA and MasterCard are the two largest general purpose card networks in the world and dominate the market for debit cards. (ComplV 90.) VISA and MasterCard were joint ventures or, as they called themselves, “membership associations” that were created, owned, governed, and operated by their member banks. (Compl. ¶ 94.) VISA and MasterCard’s networks execute transactions that use one of their affiliated general purpose cards or debit cards. (Compl.fl 81.) In turn, member banks are authorized to issue VISA and MasterCard branded general purpose cards, and some banks issue Visa and MasterCard branded debit cards. (Compl.fl 81.) B. The Currency Conversion Fees VISA and MasterCard each use a network that permits United States cardholders to make payments in dollars for purchases in foreign countries denominated in foreign currencies. (Compl.H 103.) Thus, VISA and MasterCard’s electronic networks and settlement systems serve as clearinghouses for payment card transactions which occur in foreign countries using payment cards issued by their member banks. (Compl.H 103.) These settlement systems automatically impose foreign currency surcharges, including both VISA/MasterCard surcharges and surcharges implemented by issuing Bank Defendants. (Compl.U 103.) As part of the conversion, cardholders are charged a currency conversion fee ranging from at least 1% to at most 3% of the cost of the purchase. (Compl.UU 107-125.) VISA and MasterCard utilize a “netting out” procedure to process foreign" }, { "docid": "19661620", "title": "", "text": "WINTER, Circuit Judge. American Express Company, American Express Travel Related Services Company, Inc., and American Express Centurion Bank (collectively, “Amex”) appeal from Judge Pauley’s denial of a motion to compel arbitration. Appellees Robert Ross and Randal Wachsmuth move to dismiss on the ground that we lack jurisdiction under Section 16 of the Federal Arbitration Act (“FAA”). For the reasons stated below, we deny the motion. We assume familiarity with the opinion below. See Ross v. American Express Co., 2005 WL 2364969 (S.D.N.Y. Sept. 27, 2005). We recount here only those facts necessary to dispose of the instant motion. More than twenty class action complaints have been filed against VISA and MasterCard — the two largest credit card networks — and their member banks (collectively, the “MDL Defendants”), alleging violations of the Sherman Act arising from an alleged conspiracy to fix fees for conversion of foreign currencies. See In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d 385, 390-91 (S.D.N.Y.2003). The cases were referred to the Judicial Panel on Multidistrict Litigation and consolidated in the Southern District of New York as In re Currency Conversion Fee Antitrust Litig., MDL No. 1409. Id. Subsequent to consolidation, the district court granted, in part, a motion by the MDL Defendants to compel arbitration. To the extent relevant here, the court held that: (i) cardholders whose cardholder agreements contained arbitration clauses as of the date on which they became putative class members were subject to arbitration; (ii) those cardholders were also required to arbitrate their claims against non-signatory banks under the doctrine of equitable estoppel; and (iii) the cardholders’ claimed defense against arbitration— that the arbitration agreements were unenforceable as the result of an illegal conspiracy — could not defeat a motion to compel arbitration where the complaint had not alleged an antitrust claim based on that defense. See In re Currency Conversion Fee Antitrust Litig., 361 F.Supp.2d 237, 258-59, 263-64 (S.D.N.Y.2005). In July 2004, appellees filed a class action complaint against appellants Amex in which they asserted the same claims raised in the MDL suit: that appellants had conspired with the MDL Defendants to" }, { "docid": "12975852", "title": "", "text": "of equitable estoppel. Amex IV, 547 F.3d at 148. The MDL Defendants entered into a Settlement Agreement with Class Counsel on July 20, 2006 (the “Settlement”). The Settlement provides for the payment of $336 million in full settlement of the claims in the MDL Proceeding. This Court granted preliminary approval on November 20, 2006. See CCF VII, 2006 WL 3247396. After the notice program was re-engineered at the Court’s direction, more than 10 million claims with a face value of between $557 to $577 million were filed. CCF VIII, 263 F.R.D. at 119. On October 22, 2009, this Court granted final approval. See CCF VIII, 263 F.R.D. 110. II. Plaintiffs ’ Factual Allegations VISA, MasterCard and American Express are the three largest general purpose credit card networks. (Comply 18.) In 2003, over 90% of all purchases with general purpose credit cards were made with VISA, MasterCard or American Express cards. (CompU 18.) At the time this lawsuit was filed, the Networks and American Express operated differently. VISA and MasterCard were associations “created, owned, governed, and operated by and in the interests of their member banks.” (CompU22.) VISA- and MasterCard-branded cards are issued to cardholders through member banks. (CompU 18.) In contrast, American Express was a closed network that issued cards directly to cardholders. (Comply 19.) VISA, MasterCard and American Express each allow United States cardholders to enter into transactions in foreign currencies. (Compklffl 28, 48.) In return, the Networks and American Express assess a fee for their service. VISA and MasterCard cardholders pay a two-tiered foreign currency conversion fee. (Comply 31.) The first tier constitutes 1% of the foreign transaction amount charged by cardholders and is retained by the Networks. (Compl.lffl 2, 31.) The second tier typically equals 2% of the transaction amount and is retained by the MDL Defendant Banks. (CompU 31.) American Express, in contrast, assesses a single fee for its currency conversion service that equals 2% of the transaction amount. (Compl.lffl 19, 48.) American Express and the MDL Defendant Banks disclosed their respective conversion fees in cardholder agreements, change-in-terms notices and initial disclosure statements. (CompU 44.) Plaintiffs" }, { "docid": "13317365", "title": "", "text": "seeks judgment: (1) “Ordering Defendants to immediately return the Diamond to [plaintiff];” (2) “Awarding [plaintiff] its actual compensatory damages in an amount to be determined at trial;” (3) “Awarding [plaintiff] punitive damages in the amount of $500,000.00” and (4) “Awarding [plaintiff] its legal fees and costs [incurred in connection with] this action” (Compl. at 5). However, in plaintiffs motions for default judgment and summary judgment, plaintiff seeks to recover only (1) the value of the Diamond and (2) prejudgment interest on that amount at a rate of nine percent beginning on July 29, 2009, ie., the date upon which the Diamond was shipped to the Defendants (see Deck for Default J. ¶ 10; Rule 56.1 Statement ¶ 16; Musighi Deck ¶ 11). Accordingly, with respect to (1) the entry of a default judgment against Raman Int’l for conversion of the Diamond and (2) summary judgment against Yosupov for the same, I address the relief sought in plaintiffs motions. A plaintiff who prevails on a claim for conversion “may recover the value of the property at the time and place of conversion, plus interest.” See Edidin v. Uptown Gallery, Inc., 09 Civ. 7829(DLC)(GWG), 2010 WL 2194817 at *1 (S.D.N.Y. June 1, 2010) (Cote, D.J.), citing Bank of New York v. Amoco Oil Co., 35 F.3d 643, 657, 659, 662 (2d Cir.1994) and Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326, 402 N.E.2d 122, 125, 425 N.Y.S.2d 783, 786 (1980). Specifically, “[p]rejudgment interest on damages awarded because of conversion is recoverable under N.Y. CPLR § 5001(a).” Singapore Recycle Centre Pte Ltd. v. Kad Int’l Mktg., Inc., 06-CV-4997 (RRM)(RER), 2009 WL 2424333 at *20 (E.D.N.Y. Aug. 6, 2009) (Report and Recommendation), adopted at, 2009 WL 2778003 (E.D.N.Y. Sept. 1, 2009); see also A I Marine Adjusters, Inc. v. M/V Siri Bhum, 05 Civ. 7227(LBS) (THK), 2007 WL 760415 at *5 (S.D.N.Y. Feb. 8, 2007) (Katz, M.J.) (Report and Recommendation); Am. Casualty Co. of Reading, Pennsylvania v. Morgan-White Underwriters, Inc., 02 Civ. 93(WHP) (DF), 2003 WL 23374768 at *7 (S.D.N.Y. Sept. 30, 2003) (Freeman, M.J.) (Report and Recommendation). The stat utory" }, { "docid": "11994986", "title": "", "text": "its cardholder agreements, American Express and its coconspirators intended to suppress competition and deprive their cardholders of a meaningful choice concerning the arbitration of disputes; shield themselves from potential liability arising from their illegal conduct; facilitate the conspiracies [to inflate foreign transaction fees]; and deprive their cardholders of their rights under the Truth in Lending Act and the nation’s antitrust laws. Again, there is no dispute that Amex is not a party to the cardholder agreements, nor that it has any other direct contractual relationship with the plaintiffs. We therefore do not see that Amex would dispute the plaintiffs’ contention that “the only connection Amex claims to Plaintiff cardholders is its alleged antitrust conspiracy.” Plaintiffs’ Br. at 16. Amex nevertheless asserts that its status as an alleged co-conspirator with the entities which are indisputably parties to the cardholder agreements allows it to avail itself of the compulsory arbitration clauses in those agreements. Thus, in support of its motion to compel arbitration, Amex argued as follows: Plaintiffs’ antitrust claims against American Express in this action arise directly from the cardmember agreements that Plaintiffs signed with [the Issuing Banks]. Those agreements contain mandatory arbitration provisions. Plaintiffs should not be permitted to circumvent them obligation to arbitrate claims relating to those cardmember agreements through the device of a separate lawsuit against American Express. Because Plaintiffs’ claims against American Express arise out of, and are intertwined with, the cardmember agreements, the doctrine of equitable estoppel requires Plaintiffs to arbitrate those claims, even though American Express is not a party to those agreements. The district court agreed with this contention. Quoting JLM Indus., Inc. v. Stolt-Nielsen S.A., 387 F.3d 163, 176 (2d Cir.2004), Judge Pauley noted that “ ‘a non-signatory to an arbitration agreement may compel a signatory to that agreement to arbitrate a dispute where a careful review ... discloses that the issues the non-signatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.’ ” Ross v. American Express Co., No. 04 Civ. 5723, 2005 WL 2364969, at *4 (S.D.N.Y. Sept. 27, 2005) (internal quotation marks" }, { "docid": "17094171", "title": "", "text": "103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (noting the “liberal federal policy favoring arbitration agreements,” so that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration”). Further, those arbitration agreements may be enforced by Citibank as well as an entity bearing a “close relationship” with it, such as Citibank’s parent or subsidiary corporations. Currency Conversion, 265 F.Supp.2d at 403. Accordingly, this Court holds that arbitration clauses engrafted on cardholder agreements prior to this litigation are enforceable, and those cardholders who agreed to arbitrate their claims against Citibank are excluded from the class. CONCLUSION For the foregoing reasons, Plaintiffs motion to certify Class I comprising New York state residents is granted in part, and Plaintiffs’ motion to certify Class II comprising a nationwide class of Citibank cardholders is denied. This Court certifies the New York class as follows: All New York state residents issued Citibank Visa or MasterCard credit cards who did not agree to arbitrate their claims and were assessed a foreign currency conversion fee in violation of the. New York Personal Property Law. . Familiarity with this Court's prior Memoranda and Orders is presumed. See In re Currency Conversion Fee Antitrust Litig., No. MDL 1409, 2003 WL 22097502 (S.D.N.Y. Sept.10, 2003); see also In re Currency Conversion Fee Antitrust Li-tig., No. MDL 1409, M 21-95, 2004 WL 2327938 (S.D.N.Y. Oct.15, 2004); In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d 385 (S.D.N.Y.2003). . To buttress his argument, Plaintiff repeatedly cites to Schwartz v. Visa International Corporation, No. 822404-4, 2003 WL 1870370 (Cal. Sup. Ct. Alameda Cty. Apr. 7, 2003). (Pl. Mem. at 1-5, 12; Reply Mem. at 1, 7-9, 11.) Schwartz, however, was not a Rule 23 class action, but instead involved a suit brought by a plaintiff as a private attorney general under California's consumer laws. See Schwartz, No. 822404-4, 2003 WL 1870370, at *2 (noting that \"Plaintiff's claims at trial were founded exclusively on California’s Unfair Competition Law”); see also Schwartz v. Visa Int’l Corp., No. C 00-3955 THE, 2001 WL 30535, at *1 (N.D.Cal. Jan.9, 2001). Because California's consumer laws" }, { "docid": "12975906", "title": "", "text": "Currency Conversion Fee Antitrust Litigation, No. 01-MD-1409 (WHP), Master File No. 21-95 (S.D.N.Y.). This Court appoints Robert Ross and Randall Wachsmuth as class representatives. This Court also appoints Merrill G. Davidoff, Esq. and Berger & Montague, P.C. as counsel to the class. Finally, Defendants’ motion to amend their answer to raise the defense of release is denied. SO ORDERED. . Familiarity with this Court’s prior Memoranda and Orders in this action, the MDL Proceeding, and the opinions of the Court of Appeals is presumed. See In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110 (S.D.N.Y.2009) (\"CCF VIII\"); Ross v. Am. Express Co., 547 F.3d 137 (2d Cir.2008) (\"Amex IV”); Ross v. Am. Express Co., 478 F.3d 96 (2d Cir.2007) (\"Amex III\"); Ross v. Am. Express Co., No. 04 Civ. 5723, 2006 WL 2707393 (S.D.N.Y. Sept. 21, 2006) (\"Amex II\"); In re Currency Conversion Fee Antitrust Litig., No. M 21-95, 2006 WL 3247396 (S.D.N.Y. Nov.8, 2006) (\"CCF VII\"); In re Currency Conversion Fee Antitrust Litig., No. M 21-95, 2005 WL 3304605 (S.D.N.Y. Dec.7, 2005) (\"CCF VI”); Ross v. Am. Express Co., No. 04 Civ. 5723, 2005 WL 2364969 (S.D.N.Y. Sept. 27, 2005) (\"Amex I”); In re Currency Conversion Fee Antitrust Li-tig., No. M 21-95, 2005 WL 1871012 (S.D.N.Y. Aug.9, 2005) (\"CCF V”); In re Currency Conversion Fee Antitrust Litig., 229 F.R.D. 57 (S.D.N.Y. 2005) (\"CCF IV\"); In re Currency Conversion Fee Antitrust Litig., 361 F.Supp.2d 237 (S.D.N.Y. 2005) (\"CCF III\"); In re Currency Conversion Fee Antitrust Litig., 224 F.R.D. 555 (S.D.N.Y.2004) (\"CCF II”); In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d 385 (S.D.N.Y.2003) (\"CCF I”). . There is no dispute that both Ross and Wa-chsmuth incurred foreign currency conversion fees on at least one of their credit cards issued by an MDL Defendant Bank during the class period and prior to the commencement of this lawsuit. . Plaintiffs have also offered the reports of Dr. Bradley N. Reiff, and Mike McCormack in support of this renewed motion for class certification. . Plaintiffs seek certification of a class pursuant only to Rule 23(b)(3). . For purposes of this part of" }, { "docid": "12975905", "title": "", "text": "have received no compensation. But if the release is understood as releasing only claims arising from the same core nucleus of fact, this language is logical: no other party, by assignment or operation of law, can assert claims arising from those same transactions. Therefore, this Court finds that the LiPu-ma Release cannot include the claims asserted in this action and an affirmative defense based on the LiPuma Release would be futile. Accordingly, American Express’s motion to amend its answer is denied. CONCLUSION For the reasons set forth above, Plaintiffs’ renewed motion for class certification is granted. This Court certifies the following damages class: All Visa, MasterCard and Diners Club general purpose cardholders who used cards issued by any of the Co-Conspiring Banks during the Damages Period from July 22, 2000 to November 8, 2006, and were assessed a foreign transaction fee or surcharge for using such cards to purchase goods and/or services priced in foreign currencies or in foreign countries and who have submitted valid claims, regardless of timeliness in the settlement of In re Currency Conversion Fee Antitrust Litigation, No. 01-MD-1409 (WHP), Master File No. 21-95 (S.D.N.Y.). This Court appoints Robert Ross and Randall Wachsmuth as class representatives. This Court also appoints Merrill G. Davidoff, Esq. and Berger & Montague, P.C. as counsel to the class. Finally, Defendants’ motion to amend their answer to raise the defense of release is denied. SO ORDERED. . Familiarity with this Court’s prior Memoranda and Orders in this action, the MDL Proceeding, and the opinions of the Court of Appeals is presumed. See In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110 (S.D.N.Y.2009) (\"CCF VIII\"); Ross v. Am. Express Co., 547 F.3d 137 (2d Cir.2008) (\"Amex IV”); Ross v. Am. Express Co., 478 F.3d 96 (2d Cir.2007) (\"Amex III\"); Ross v. Am. Express Co., No. 04 Civ. 5723, 2006 WL 2707393 (S.D.N.Y. Sept. 21, 2006) (\"Amex II\"); In re Currency Conversion Fee Antitrust Litig., No. M 21-95, 2006 WL 3247396 (S.D.N.Y. Nov.8, 2006) (\"CCF VII\"); In re Currency Conversion Fee Antitrust Litig., No. M 21-95, 2005 WL 3304605 (S.D.N.Y. Dec.7, 2005) (\"CCF" }, { "docid": "12975907", "title": "", "text": "VI”); Ross v. Am. Express Co., No. 04 Civ. 5723, 2005 WL 2364969 (S.D.N.Y. Sept. 27, 2005) (\"Amex I”); In re Currency Conversion Fee Antitrust Li-tig., No. M 21-95, 2005 WL 1871012 (S.D.N.Y. Aug.9, 2005) (\"CCF V”); In re Currency Conversion Fee Antitrust Litig., 229 F.R.D. 57 (S.D.N.Y. 2005) (\"CCF IV\"); In re Currency Conversion Fee Antitrust Litig., 361 F.Supp.2d 237 (S.D.N.Y. 2005) (\"CCF III\"); In re Currency Conversion Fee Antitrust Litig., 224 F.R.D. 555 (S.D.N.Y.2004) (\"CCF II”); In re Currency Conversion Fee Antitrust Litig., 265 F.Supp.2d 385 (S.D.N.Y.2003) (\"CCF I”). . There is no dispute that both Ross and Wa-chsmuth incurred foreign currency conversion fees on at least one of their credit cards issued by an MDL Defendant Bank during the class period and prior to the commencement of this lawsuit. . Plaintiffs have also offered the reports of Dr. Bradley N. Reiff, and Mike McCormack in support of this renewed motion for class certification. . Plaintiffs seek certification of a class pursuant only to Rule 23(b)(3). . For purposes of this part of this memorandum and order, this Court assumes that the Defendants could assert the LiPuma Release in this action. . There is no dispute that the LiPuma Release is governed by New York law. See Amex I, 2005 WL 2364969, at *11 n. 5." }, { "docid": "15634983", "title": "", "text": "contrast to other decisions in this Circuit decreasing the amount of fees as the settlement recoveries increase. See In re Citigroup Inc. Bond Litig., 988 F.Supp.2d 371, 374 (S.D.N.Y. 2013) (“the percentage fee awarded in settlements as large as this one is typically lower — [sometimes] substantially lower — than 20%.”) (collecting cases); In re Elan Sec. Litig., 386 F.Supp.2d 363 (S.D.N.Y. 2005) (awarding 12% of $75 million settlement); In re Bristol-Myers Squibb Sec. Litig., 361 F.Supp.2d 229 (S.D.N.Y. 2005) (awarding 3% of $300 million settlement); In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 991 F.Supp.2d 437 (E.D.N.Y. 2014) (awarding 9.6% of $5.7 billion settlement). As one Class Member, PepsiCo, expressed to this Coui’t, a “fee of 30 percent exceeds the range that this Court has awarded to class counsel in connection with other settlements.” (EOF No. 590.) Indeed, this Court has previously held that fee requests of “27.5% [or higher] of the net fund is on the high end of the range of fee awards.” Currency Conversion, 263 F.R.D. at 129 (collecting eases). And in earlier class action settlements ranging from $15 million to $336 million, this Court cabined awards to between 12% to 28% of the funds. See Platinum and Palladium, 2015 WL 4560206 (reducing request from 29.5% to 22.5% of $72.5 million fund); In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110 (S.D.N.Y. 2009) (reducing fee request from 25.5% to 15.5% in $336 million fund); In re Bayer AG Sec. Litig., 03-cv-1546 (WHP), 2008 WL 5336691 (S.D.N.Y. Dec. 15, 2008) (approving 12% of 18.5 million fund); In re Polaroid ERISA Litig., No. 03-cv-8335 (WHP), 2007 WL 2116398 (S.D.N.Y. July 19, 2007) (reducing request from 30% to 28% of $15 million fund). Accordingly, this Court declines to adopt wholesale Counsel’s notion that a 30% fee award is reasonable in relation to a mega-fund settlement. 6. Public Policy Considerations Public policy encourages the award of reasonable attorneys’ fees, but courts must also “guard against providing a monetary windfall to class counsel to the detriment of the plaintiff class.” In re NTL Inc. Sec. Litig., No." }, { "docid": "19301467", "title": "", "text": "2003) (awarding 28% of a $300 million fund); In re Priceline.com. Inc. Sec. Litig., No. 00-1884(AVC), 2007 WL 2115592, at *5 (D.Conn. July 20, 2007) (awarding 30% of an $80 million fund) with Goldberger. 209 F.3d 43 (affirming the district court’s award of 4% of a $54 million settlement); In re Air Cargo Shipping Serv. Antitrust Litig., 06 MDL 1775(JG), 2009 WL 3077396, at *16 (E.D.N.Y. Sept. 25, 2009) (awarding 15% of $85 million fund); In re Elan Sec. Litig., 385 F.Supp.2d 363 (S.D.N.Y.2005) (awarding 12% of a $75 million settlement); Carlson v. Xerox Corp., 596 F.Supp.2d 400, 413-14 (D.Conn.2009) (awarding 16% of $750 million fund); Denney v. Deutsche Bank, 230 F.R.D. 317, 352-54 (S.D.N.Y.2005) (awarding 15.5% of $81.5 million fund); In re Bristol-Myers Squibb Sec. Litig., 361 F.Supp.2d 229, 236 (S.D.N.Y.2005) (awarding 3% of $300 million settlement). 6. Public Policy Considerations While public policy favors “the award of reasonable attorney’s fees,” courts must also “guard against providing a monetary windfall to class counsel to the detriment of the plaintiff class.” In re NTL Inc. Sec. Litig., No. 02 Civ. 3013(LAK), 2007 WL 1294377, at *8 (S.D.N.Y. May 2, 2007) (internal quotations omitted). Applying the Goldberger factors, this Court concludes that a total attorneys’ fee of $51,250,000 is reasonable and appropriate. This represents a recovery of approximately 15.25% of the Fund without interest and when cross-checked against the loadstar results in a 1.6 multiplier. This award should adequately compensate Class Counsel for their time and effort, the risks they faced in this case, and the high quality of their representation, and is within the range of awards in “mega-fund” cases. See, e.g., Carlson, 596 F.Supp.2d at 413-14 (awarding 16% of $750 million fund); In re Air Cargo Shipping Serv. Antitrust Litig., 06 MDL 1775(JG), 2009 WL 3077396, at *16 (E.D.N.Y. Sept. 25, 2009) (awarding 15% of $85 million fund); In re Qwest Commc’n Int'l Secs. Litig., No. 01-cv-01451-REB-CBS, 2006 U.S. Dist. LEXIS 71267 at *23 (D.Colo. Sept. 29, 2006) (awarding 15% of $400 million fund); In re Freddie Mac Sec. Litig., No. 03 Civ. 4261(JES), slip op., at 1 (S.D.N.Y." }, { "docid": "12975873", "title": "", "text": "(“Typicality in the antitrust context will be established by plaintiffs and all class members alleging the same antitrust violation as the defendants.”); In re Urethane Antitrust Litig., Polyether Polyol Cases, 251 F.R.D. 629, 640-41 (D.Kan. 2008) (“Urethane II”) (finding typicality in an antitrust price-fixing conspiracy (collecting cases)); see also In re Potash Antitrust Litig., 159 F.R.D. 682, 691 n. 11 (D.Minn. 1995) (same) (collecting cases). 2. Adequacy Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ, P. 23(a)(4). “Adequacy ‘entails inquiry as to whether: 1) plaintiffs interests are antagonistic to the interest of other members of the class and 2) plaintiffs attor neys are qualified, experienced and able to conduct this litigation.’ ” In re Flag Telecom, 574 F.3d at 35 (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir.2000)). “The focus is on uncovering ‘conflicts of interest between named parties and the class they seek to represent.’ ” In re Flag Telecom, 574 F.3d at 35 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). However, “[i]n order to defeat a motion for certification, the conflict must be fundamental.” In re Flag Telecom, 574 F.3d at 35 (internal quotation marks and citation omitted). Relying in part on a footnote in this Court’s decision in Amex I, Defendants contend that Ross and Wachsmuth are adequate class representatives only for cardholders holding the same cards that Plaintiffs actually hold and on which Plaintiffs incurred currency conversion fees at the time the litigation was filed. In Amex I, this Court noted that Ross and Wachsmuth were adequate representatives only for the cards they actually held. See Amex I, 2005 WL 2364969, at *1 n. 1. This holding was based in part on this Court’s prior holding in CCF TV that the named plaintiffs in that action, Chase and Citibank cardholders, were inadequate to represent cardholders of another bank, Pro-vidian, because the plaintiffs there only offered “conclusory statements” that they would adequately protect the interests of the absent" }, { "docid": "12975849", "title": "", "text": "MEMORANDUM & ORDER WILLIAM H. PAULEY III, District Judge. Robert Ross and Randal Wachsmuth (“Plaintiffs”) bring this putative class action asserting Sherman Act claims against Defendants American Express company, American Express Travel Related Services and American Express Centurion Bank (collectively, “Defendants” or “American Express”). Plaintiffs’ antitrust claims arise from alleged conspiracies to fix foreign currency conversion fees and to impose arbitration clauses in cardholder agreements. Presently before this Court are Plaintiffs’ renewed motion for certification of a damages class related to their foreign currency conversion fee price-fixing claim and Defendants’ motion to amend their answer to include the defense of release. For the following reasons, Plaintiffs’ motion is granted and Defendants’ motion is denied. BACKGROUND I. Procedural Background Robert Ross and Randal Wachsmuth hold MasterCard or VISA (the “Networks”) credit cards. Plaintiffs, the Networks and a number of banks that issue MasterCard — and VISA-branded general purpose credit cards (the “MDL Defendant Banks”) have been engaged in a multi-district litigation before this Court styled In re Currency Conversion Fee Antitrust Litigation, MDL No. 1409 (the “MDL Proceeding”). The MDL Proceeding involves claims against the Networks and the MDL Defendant Banks (collectively, the “MDL Defendants”). Plaintiffs allege that the MDL Defendants conspired to fix foreign currency conversion fees charged to cardholders. (Complaint dated July 22, 2004 (“Compl.”) ¶ 1.) Drawing on the conspiracy allegations in the MDL Proceeding, Plaintiffs initiated this action on July 22, 2004. The Complaint alleges that against American Express “actively conspired” with the MDL Defendants to fix currency conversion fees. (Compl.lffl 1-3.) Although not at issue in this renewed class certification motion, Plaintiffs also assert that American Express “conspired with the MDL Defendant Banks to include compulsory arbitration clauses in their respective cardholder agreements.” (ComplV 3.) This second claim concerning arbitration clauses is also the subject of another related action Ross v. Bank of America, 05 Civ. 7116(WHP), against the MDL Defendant Banks and others, pending before this Court. On September 27, 2005, this Court granted class certification on the arbitration clause conspiracy claim and also ruled that American Express could have the benefit of arbitration clauses" } ]

[ { "docid": "2190041", "title": "", "text": "1064 (2d Cir.1983); United States v. Bassler, 651 F.2d 600, 603 (8th Cir.1981). The genesis of this presumption is the Supreme Court’s opinion in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), where the Court explained that “[i]n a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about a matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court ... with full knowledge of the parties.” Id. at 229, 74 S.Ct. 450. This court has applied the presumption of prejudice only when the extraneous information is of a considerably serious nature. See Waldorf, 3 F.3d at 710 n. 6; see also Bertoli, 40 F.3d at 1394 (commenting that only “certain extra-jury influences create” the presumption). In particular, we have tended to apply the presumption of prejudice when a juror is directly contacted by third-parties. See United States v. Console, 13 F.3d 641, 666 (3d Cir.1993) (stating that application of the presumption is most appropriate when there is direct communication between a juror and a third-party during deliberations); see also United States v. Boylan, 898 F.2d 230, 261 (1st Cir.1990) (applying “the Rem-mer standard ... to cases of significant ex parte contacts with sitting jurors or those involving aggravated circumstances”). In contrast, we tend not to apply the presumption to circumstances in which the extraneous information at issue is a media report, such as a television story or newspaper article. See Gilsenan, 949 F.2d at 95-96 (not applying presumption of prejudice to media coverage of failed plea agreement in the case); United States v. D’Andrea, 495 F.2d 1170, 1172 n. 5 (3d Cir.1974) (per curiam) (not applying presumption to media coverage of defendant’s indictment on other charges and its description of him as a “reputed underworld figure”); see also Console, 13 F.3d at 666 n. 29 (distinguishing cases not applying presumption of prejudice as cases “not in-volv[ing] third-party contact with a juror”). Yet, as this court stated in Waldorf, “[i]n some cases the" } ]

[ { "docid": "22150886", "title": "", "text": "strength of Government’s case, whether information gained was cumulative); United States v. Blumeyer, 62 F.3d 1013, 1017-18 (8th Cir.1995) (same). On balance, these factors indicate a lack of prejudice to Basham. First, the extent of the communication, the most important factor, was minimal; several phone calls to different media outlets, none lasting longer than six minutes. The district court found there was “no showing” that the media outlets even provided any information to Wilson. See United States v. Sampson, 486 F.3d 13, 41-42 (1st Cir.2007), cert. denied, — U.S. —, 128 S.Ct. 2424, 171 L.Ed.2d 234 (2008) (finding no prejudice where communication between juror and witness, during which juror told witness he had a good memory, was “terse, fortuitous, and devoid of substantive content”); Blumeyer, 62 F.3d at 1016-18 (concluding that the presumption of prejudice does not even attach unless extraneous information relates to facts under deliberation and, even assuming it did, finding no prejudice where jury foreman asked lawyer hypothetical question about issue of law); United States v. Diez, 736 F.2d 840, 845-46 (2d Cir.1984) (finding no prejudice where juror asked a law enforcement officer whether he knew two witnesses in an ongoing trial). To the extent Wilson received any information, it was a statement from the WSPA news producer Shannon Mays that she had covered the case in Indiana when Basham and Fulks escaped; such information was obviously cumulative of what the jury had already heard. In addition, the district court found “no evidence” that Wilson “informed the other members of the jury about the phone calls.” (J.A. at 3261.) We admit the timing of the communication, right before jury instructions, is troubling. See Waldorf v. Shuta, 3 F.3d 705, 713 (3d Cir.1993) (noting that exposure both the night before and day of the verdict was at a very critical moment). Courts rarely find external communication prejudicial, however, where, like here, the communications are “devoid of substantive content.” Sampson, 486 F.3d at 41. Given the district court’s express finding that Wilson received no substantive information during these phone calls, we cannot say that the district court abused its" }, { "docid": "22150887", "title": "", "text": "Cir.1984) (finding no prejudice where juror asked a law enforcement officer whether he knew two witnesses in an ongoing trial). To the extent Wilson received any information, it was a statement from the WSPA news producer Shannon Mays that she had covered the case in Indiana when Basham and Fulks escaped; such information was obviously cumulative of what the jury had already heard. In addition, the district court found “no evidence” that Wilson “informed the other members of the jury about the phone calls.” (J.A. at 3261.) We admit the timing of the communication, right before jury instructions, is troubling. See Waldorf v. Shuta, 3 F.3d 705, 713 (3d Cir.1993) (noting that exposure both the night before and day of the verdict was at a very critical moment). Courts rarely find external communication prejudicial, however, where, like here, the communications are “devoid of substantive content.” Sampson, 486 F.3d at 41. Given the district court’s express finding that Wilson received no substantive information during these phone calls, we cannot say that the district court abused its discretion in denying Basham’s motion for a new trial. In drawing this conclusion, we find relevant the First Circuit’s following statement in Sampson: Here, moreover, the district court’s inquiry was virtually a textbook model. The court’s response was swift, its questioning pointed, and its search for any inkling of prejudice thorough. After making a face-to-face assessment of the juror’s sincerity and of the possibility that other jurors had been contaminated, the court concluded that the interaction was harmless. That conclusion may not have been inevitable, but it plainly was not an abuse of discretion. Id. at 42. Likewise, the district court’s inquiry here was a “textbook model.” Immediately after being contacted by the AUSA, it called in the jurors potentially responsible for the communication. In total, the district court held nine hearings, subpoenaed phone records, questioned every juror and alternate, and carefully considered all the evidence concerning the communication. While, as in Sampson, the district court’s conclusion was not necessarily “inevitable,” it “plainly was not an abuse of discretion.” Sampson, 486 F.3d at 42. III." }, { "docid": "1473337", "title": "", "text": "was made and that it was of such a character as to reasonably draw into question the integrity of the verdict.” Id. at 743; Billings v. Polk, 441 F.3d 238, 247 n. 6 (4th Cir.2006); see also Stouffer, 738 F.3d at 1214 (“When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the eireum stances of the improper contact and the extent of the prejudice, if any, to the defendant.”); Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir.2005) (a Remmer hearing is required when “the extraneous communication to the juror [is] of a character that creates a reasonable suspicion that further inquiry is necessary to determine whether the defendant was deprived of his right to an impartial jury”). Stated differently, the Remmer presumption and hearing requirement are triggered after the party attacking the verdict satisfies the “minimal standard” of showing that “extrajudicial communications or contacts [between a juror and a third party] were more than innocuous interventions.” United States v. Cheek, 94 F.3d 136, 141 (4th Cir.1996) (internal citations and quotation marks omitted). In considering whether a particular communication or contact between a juror and a third party is more than an innocuous intervention, we refer back to the “factors the Supreme Court deemed important” in Remmer itself. Id. Those factors are: any private communication; any private contact; any tampering; directly or indirectly with a juror during trial; about the matter before the jury. See id. (citing Remmer, 347 U.S. at 229, 74 S.Ct. 450). Extrajudicial communications or contact with a juror has been deemed to trigger Remmer in a variety of circumstances, including: a juror being offered a bribe during trial and subsequently being investigated by an FBI agent, Remmer, 347 U.S. at 229-30, 74 S.Ct. 450; a juror applying for a job at the prosecuting attorney’s office during the trial, Phillips, 455 U.S. at 216-18, 102 S.Ct. 940; a local restaurant owner suggesting to jurors in a capital case that “they ought to fry the son of a bitch,” Stockton, 852" }, { "docid": "22150881", "title": "", "text": "the district court concluded that the Government had rebutted the presumption of prejudice because “the contact did not involve the defendant, the government, or any witnesses in the case,” and Wilson “reached out to strangers to the suit who would have had no information other than what was available in the public arena.” (J.A. at 3260.) And, “there is no evidence that the juror informed the other members of the jury about the phone calls.” (J.A. at 3261.) The district court rejected a similar argument by Basham that Wilson’s “flagrant[] violation]” of the court’s instructions created a due process violation and a structural error. (J.A. at 3261.) The district court, citing Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996) (en banc), in which we declined an invitation to rule that juror misconduct was a structural error, found that “there has been no showing that the juror’s actions in this case was anything other than harmless error.” (J.A. at 3262.) B. Legal Analysis We review the denial of a motion for a new trial for abuse of discretion. Fulks, 454 F.3d at 431. However, in cases involving possible improper communication with jurors, “because the ultimate factual determination regarding the impartiality of the jury necessarily depends on legal conclusions, it is reviewed in light of all the evidence,” and therefore we apply a “somewhat narrowed” modified abuse of discretion standard that grants us “more latitude to review the trial court’s conclusion in this context than in other situations.” United States v. Cheek, 94 F.3d 136, 140 (4th Cir.1996) (internal citation and quotation marks omitted). The Sixth Amendment includes an impartial jury clause, such that “[private communications, possibly prejudicial, between jurors and third persons, ... are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.” Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 36 L.Ed. 917 (1892). “In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. The failure to accord an accused a fair hearing violates even the minimal standards of" }, { "docid": "23452754", "title": "", "text": "the jury was exposed to prejudicial extrinsic influence for abuse of discretion. See United States v. Carpa, 271 F.3d 962, 967 (11th Cir.2001) (per curiam) (citation omitted). “In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is ... deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); McNair v. Campbell, 416 F.3d 1291, 1307 (11th Cir.2005) (citations omitted). A juror’s exposure to extraneous material or influence requires a new trial if the exposure “poses a reasonable possibility of prejudice to the defendant.” United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (emphasis and citations omitted). For the presumption to be triggered, a defendant must establish that an extrinsic contact with a jury, in fact, occurred. United States v. Caporale, 806 F.2d 1487, 1503 (11th Cir.1986) (citation omitted). After this showing is made, the burden shifts to the government to prove that the extrinsic contact was not prejudicial. Id. (citation omitted). “The factual determination of whether consideration of extrinsic evidence caused the defendant prejudice is committed to the trial court’s ‘large discretion.’ ” BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1472 (11th Cir.1992) (citation omitted). The juror’s testimony “that the extrinsic information was harmless is not controlling.” United States v. Bolinger, 837 F.2d 436, 440 (11th Cir.1988) (citation omitted). “The district court may consider such testimony, but it must also consider other factors such as the nature of the extrinsic evidence and the strength of the evidence properly presented by the government against the defendant.” Id. We cannot say the district court abused its discretion in denying a motion for a new trial based on the facts presented here. After interviewing the jurors separately, the district court concluded that no juror had been improperly influenced by Juror H’s experience. Juror H" }, { "docid": "14479389", "title": "", "text": "321 F.3d 1270, 1279-81 (10th Cir.) (considering juror’s exposure to an inaccurate report of attorney-juror contact), cert. denied sub nom., Bono v. United States, 540 U.S. 864, 124 S.Ct. 175, 157 L.Ed.2d 116 (2003); Vigil v. Zavaras, 298 F.3d 935, 940-43 (10th Cir.2002) (considering jurors’ exposure to fellow juror’s personal account of how long it took to drive a certain route — a matter relevant to the prosecution’s alleged time line and the defendant’s alibi). On direct appeal, “[w]hen members of a jury are exposed to extraneous information about a matter pending before the jury[,] a presumption of prejudice arises.” Scull, 321 F.3d at 1280 (citing Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954)). “The presumption of prejudice weighs heavily in favor of the defendant but is not insurmountable” and “the government can seek to prove the exposure to extraneous information was harmless beyond a reasonable doubt.” Id. In habeas corpus proceedings, this presumption generally does not apply. Vigil, 298 F.3d at 940 n. 6 (applying Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Thus, the court may grant relief only if the extraneous information “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. at 940 (quoting Brecht, 507 U.S. at 637, 113 S.Ct. 1710). In deciding whether such information substantially influenced the jury’s verdict the court may consider a number of factors, such as: (1) the degree to which the jury discussed and considered the extrinsic information; (2) the extent to which the jury had difficulty reaching a verdict prior to receiving the improper evidence; (3) the degree to which the information related to a material fact in the case; (4) when the jury received the extrinsic evidence; (5) the strength of the legitimate evidence; and (6) whether the extrinsic evidence merely duplicates evidence properly before the jury. See id. at 941 (collecting cases). This case-specific, record-intensive approach is inconsistent with Mr. Malicoat’s assertion of structural error. Additionally, we have found no federal cases involving prosecutors’ use of religious material" }, { "docid": "23047657", "title": "", "text": "his procedural default, we may now determine whether a constitutional violation merits habeas relief. Ward has made a colorable showing that the jury was exposed to extraneous information when the bailiff informed a juror that life without parole was not a sentencing option. Such exposure is presumptively prejudicial. See Remmer, 347 U.S. at 229, 74 S.Ct. at 451; Siegelman, 561 F.3d at 1237. As noted earlier, the government may rebut this presumption by carrying its heavy burden of showing that the improper communication was harmless. See Siegelman, 561 F.3d at 1237. “An error is harmless unless there is a reasonable likelihood that [it] affected the defendant’s substantial rights.” United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir.2007) (quotation marks and citation omitted). Reversal requires that the error had “a substantial influence on the outcome of the case.” Id. In assessing harmless error, we must consider all the circumstances, including any jurors’ testimony, the nature of the extrinsic evidence, the manner in which the extrinsic evidence reached the jury, and the strength of the government’s case. See id. at 1291; Siegelman, 561 F.3d at 1237. An assessment of these factors yields the conclusion that the improper communication was not harmless in this case. The nature of the extrinsic evidence concerned the possibility of parole. As we have explained, the jury’s consideration of this issue was strictly forbidden by Georgia law, see Quick, 353 S.E.2d at 503, and an infringement of Ward’s constitutional due process right to have the jury base its verdict on the evidence presented at trial. See Parker, 385 U.S. at 364, 87 S.Ct. at 470; Remmer, 347 U.S. at 229, 74 S.Ct. at 451. The manner in which this evidence reached the jury — through the bailiff — also weighs against a finding of harmless error. The Supreme Court has recognized that “the official character of the bailiff — as an officer of the court as well as of the State — beyond question carries great weight with a jury[.]” Parker, 385 U.S. at 365, 87 S.Ct. at 470; see also Johnson v. Wainwright, 778 F.2d 623," }, { "docid": "1625441", "title": "", "text": "tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is ... deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954); accord United States v. Console, 13 F.3d 641, 666 (3d Cir.1993) (holding that presumption of prejudice applies when there is third-party communication with a juror regarding the matter pending before the jury). However, this presumption of prejudice is not conclusive. See Remmer, 347 U.S. at 229, 74 S.Ct. 450. Rather, the District Court should hold a hearing in the presence of the defendant at which the Government has the burden to prove that the improper communication did not and will not prejudice the defendant. See id. at 229-30, 74 S.Ct. 450. Although the method of conducting voir dire during the hearing to determine prejudice is left to the sound discretion of the District Court, see Console, 13 F.3d at 667, it must conduct a voir dire of all jurors with whom the improper communication occurred that is sufficiently tailored to probe adequately the possibility of prejudice. Waldorf, 3 F.3d at 710; Console, 13 F.3d at 667. In Waldorf, the jurors had been exposed to newspaper articles and other media that revealed inadmissible evidence. The District Court conducted a voir dire of certain jurors who admitted they had heard or seen the information from the media, but the Court failed to do a “searching inquiry into the extent and nature of the prejudicial extrajudicial information that reached the jurors so as to ascertain for itself whether there was a substantial likelihood of prejudice_” 3 F.3d at 713. We therefore remanded for a new trial. See id. In Console, the District Court conducted an individual in camera voir dire of each juror potentially affected by the improper communication and on the basis of the voir dire concluded that the defendant was not prejudiced. 13 F.3d at" }, { "docid": "6611881", "title": "", "text": "75 F.3d at 381 (juror’s statement that another juror said defendant had criminal record holds sufficient potential for prejudice to require full hearing). The district court’s investigation of the misconduct focussed on whether the contamination was spread throughput the jury, but the court foreclosed a thorough inquiry into the existence and effect of the alleged communication to Johnson. The district court underlined its narrow view of the issues presented in its written order denying Tucker’s new trial motion: “Each juror, under oath, denied knowledge of Tucker’s action in denying clemency of Johnson’s husband, and stated that the matter was never discussed during deliberations. Hence, the Court finds that no extraneous prejudicial information was improperly brought to the jury’s attention and that no outside influence was improperly brought to bear upon any juror.” The question of prejudice depends on whether “there is any reasonable chance that the jury would have been deadlocked or would have reached a different verdict but for the •fact that even one reasonable juror was exposed to prejudicial extraneous matter.” United States v. Hall, 116 F.3d 1253, 1255 (8th Cir.1997) (emphasis added), cert. denied, — U.S. -, 118 S.Ct. 1106, — L.Ed.2d -(1998). Therefore, prejudice is possible even if Johnson was the only juror to be contaminated. In extraneous evidence cases, we have looked to see the extent and timing of jury exposure to the extraneous fact. See United States v. Blumeyer, 62 F.3d 1013, 1017 (8th Cir.1995), cert. denied, 516 U.S. 1172, 116 S.Ct. 1263, 134 L.Ed.2d 212 (1996); Hall, 85 F.3d at 371. This is simply part of the calculation in determining how much weight to accord one improperly received fact in the context of a trial’s worth of other facts. Contamination of a different kind occurs when, rather than being exposed to a fact not in evidence, a juror is subjected to psychological pressure by an outsider trying to coopt that juror’s vote. In such a case, the effect on the particular juror is intense and can be harmful to the litigants, even though the rest of the jury remains unaware of the impropriety" }, { "docid": "426800", "title": "", "text": "was “more than innocuous,” the Remmer presumption is “triggered automatically,” and “[t]he burden then shifts to the [government] to prove that there exists no ‘reasonable possibility that the jury’s verdict was influenced by an improper communication.’ ” Cheek, 94 F.3d at 141 (quoting Stephens v. S. Atl. Canners, Inc., 848 F.2d 484, 488-89 (4th Cir.1988)). We most recently discussed and applied the Remmer presumption in United States v. Basham, 561 F.3d 302 (4th Cir.2009). The decision in Basham involved a juror who had contacted several news media outlets during the penalty phase of the trial. Id. at 316. In holding that Basham was not entitled to a new trial as a result of the juror’s misconduct, we applied the Remmer presumption using the analysis set forth in Cheek, and concluded that the district court did not err in holding that the government had rebutted the presumption. Id. at 319-21; see also United States v. Blauvelt, 638 F.3d 281, 294-95 (4th Cir.2011) (discussing the Remmer presumption of prejudice but holding it inapplicable to a juror’s “innocuous” email exchange, concerning a wholly unrelated subject, with an assistant federal prosecutor who was not involved in defendant’s trial). We have been joined by several of our sister circuits, including the Second, Seventh, Ninth, Tenth, and Eleventh Circuits, in continuing to apply the Remmer presumption in cases involving external influences on jurors. See United States v. Greer, 285 F.3d 158, 173 (2d Cir.2002) (citing Remmer for proposition that “[i]t is well-settled that any extra-record information of which a juror becomes aware is presumed prejudicial” and that “[a] government showing that the information is harmless will overcome this presumption”); United States v. Moore, 641 F.3d 812, 828 (7th Cir.2011) (same); United States v. Dutkel, 192 F.3d 893, 895-96 (9th Cir.1999) (applying Remmer presumption in jury tampering case and disagreeing that the presumption has been abrogated); Mayhue, 969 F.2d at 922 (10th Cir.) (“The law in the Tenth Circuit is clear. A rebuttable presumption of prejudice arises whenever a jury is exposed to external information in contravention of a district court’s instructions.”); United States v. Ronda, 455" }, { "docid": "426799", "title": "", "text": "involving a restaurant owner’s comments to a few members of the jury, eating at the restaurant during a break in sentencing deliberations, that “they ought to fry the son of a bitch.” In applying the Remmer analysis, and in granting the defendant a new sentencing hearing because the government failed to rebut the presumption, we expressly held in Stockton that the Supreme Court’s decision in Phillips did not overturn the holding in Remmer. We distinguished the facts presented in Phillips, and concluded that in cases in which “the danger is not one of juror impairment or predisposition, but rather the effect of an extraneous communication upon the deliberative process of the jury,” the Remmer presumption is applicable. Stockton, 852 F.2d at 744. Similarly, in Cheek, we applied the Remmer presumption after the Supreme Court’s decision in Olano and awarded the defendant a new trial in a case involving a bribe attempt on one of the jurors. 94 F.3d at 138. We stated that once a defendant introduces evidence that there was an extrajudicial communication that was “more than innocuous,” the Remmer presumption is “triggered automatically,” and “[t]he burden then shifts to the [government] to prove that there exists no ‘reasonable possibility that the jury’s verdict was influenced by an improper communication.’ ” Cheek, 94 F.3d at 141 (quoting Stephens v. S. Atl. Canners, Inc., 848 F.2d 484, 488-89 (4th Cir.1988)). We most recently discussed and applied the Remmer presumption in United States v. Basham, 561 F.3d 302 (4th Cir.2009). The decision in Basham involved a juror who had contacted several news media outlets during the penalty phase of the trial. Id. at 316. In holding that Basham was not entitled to a new trial as a result of the juror’s misconduct, we applied the Remmer presumption using the analysis set forth in Cheek, and concluded that the district court did not err in holding that the government had rebutted the presumption. Id. at 319-21; see also United States v. Blauvelt, 638 F.3d 281, 294-95 (4th Cir.2011) (discussing the Remmer presumption of prejudice but holding it inapplicable to a juror’s “innocuous”" }, { "docid": "426802", "title": "", "text": "F.3d 1273, 1299 (11th Cir.2006) (if defendant establishes that jury has been exposed to extrinsic evidence or contacts, “prejudice is presumed and the burden shifts to the government to rebut the presumption”); see also United States v. Bradshato, 281 F.3d 278, 287-88 (1st Cir.2002) (observing that the Remmer presumption is still applicable in First Circuit “only where there is an egregious tampering or third party communication which directly injects itself into the jury process”) (citation omitted); United States v. Lloyd, 269 F.3d 228, 238 (3d Cir.2001) (applying presumption of prejudice when a jury is exposed to extraneous information “of a considerably serious nature”). We note, however, that in contrast to these decisions applying the Remmer presumption, the Fifth, Sixth, Eighth, and District of Columbia Circuits have departed from use of the presumption. These circuits have taken this contrary position based on their view of Phillips and Olano. See United States v. Sylvester, 143 F.3d 923, 933-35 (5th Cir.1998) (holding that Phillips and Olano effectively rejected RemmePs rebuttable presumption, and that “only when the [trial] court determines that prejudice is likely should the government be required to prove its absence”); United States v. Williams-Davis, 90 F.3d 490, 495-97 (D.C.Cir.1996), (holding that Phillips and Olano narrowed the Remmer presumption, and that trial court must determine whether particular intrusion showed “likelihood of prejudice,” which would place on the government the burden of proving harmlessness); United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984) (holding that Phillips altered law such that Remmer rebuttable presumption is no longer applicable, and that burden to establish prejudice rests with defendant); see also United States v. Blumeyer, 62 F.3d 1013, 1017 (8th Cir.1995) (citing Ola- no for proposition that defendant has burden to prove actual prejudice in cases involving extrinsic juror contact pertaining to issues of law, but not to issues of fact). ii. a. The continued vitality of Remmer in this Circuit, however, does not resolve the question whether the presumption is applicable in cases involving a juror’s unauthorized use of Wikipedia. Initially, we observe that an allegation of jury tampering or of a juror’s contact" }, { "docid": "22150880", "title": "", "text": "privacy. As the district court explained, summarizing the breadth of its investigation “[w]e have heard from 16 jurors under oath and we have heard from Cynthia Wilson three times, and I’ve signed subpoenas for the defense lawyers to get dozens if not hundreds of telephone records.” (J.A. at 3189.) The district court held its ninth and final hearing on February 14, 2005, to consider Basham’s motion for a new trial in full. By written order on March 14, 2005, the district court denied the motion for a new trial. The district court concluded that Wilson’s contact counted as an improper external influence, triggering a presumption of prejudice under Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (Remmer I), and its progeny. See, e.g., Stockton v. Virginia, 852 F.2d 740, 743-44 (4th Cir.1988). The district court described the situation as follows: “This case presents a unique situation involving egregious misbehavior by a juror, but no showing that she learned anything or was influenced in any way.” (J.A. at 3259.) Ultimately, the district court concluded that the Government had rebutted the presumption of prejudice because “the contact did not involve the defendant, the government, or any witnesses in the case,” and Wilson “reached out to strangers to the suit who would have had no information other than what was available in the public arena.” (J.A. at 3260.) And, “there is no evidence that the juror informed the other members of the jury about the phone calls.” (J.A. at 3261.) The district court rejected a similar argument by Basham that Wilson’s “flagrant[] violation]” of the court’s instructions created a due process violation and a structural error. (J.A. at 3261.) The district court, citing Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996) (en banc), in which we declined an invitation to rule that juror misconduct was a structural error, found that “there has been no showing that the juror’s actions in this case was anything other than harmless error.” (J.A. at 3262.) B. Legal Analysis We review the denial of a motion for a new trial for abuse" }, { "docid": "426807", "title": "", "text": "no prejudice occurred, are among the courts that have rejected the view that Remmer has been abrogated. See e.g., Marino v. Vasquez, 812 F.2d 499, 505 (9th Cir.1987) (holding that unauthorized use of dictionary definitions is reversible error and that government must establish that error is harmless beyond reasonable doubt); United States v. Aguirre, 108 F.3d 1284, 1288 (10th Cir.1997) (citing Mayhue for proposition that “jury’s exposure to extrinsic information [such as a dictionary definition] gives rise to a rebuttable presumption of prejudice”); United States v. Martinez, 14 F.3d 543, 550 (11th Cir.1994) (in case involving several categories of extrinsic evidence, including unauthorized use of dictionary to define terms discussed during deliberations, holding that “we assume prejudice and thus, we must consider whether the government rebutted that presumption”); see also United States v. Console, 13 F.3d 641, 665-66 (3d Cir.1993) (applying presumption of prejudice in case in which juror discussed definition of RICO with her sister, an attorney, and shared the attorney’s definition with other jurors during deliberations). In contrast, the courts that have declined to apply a presumption of prejudice in these “dictionary” cases are some of the same courts that have held that the Remmer rebuttable presumption of prejudice is no longer applicable. See e.g., United States v. Gillespie, 61 F.3d 457, 460 (6th Cir.1995) (“if members of the jury in fact used the dictionary definition [to reach their verdict], the defendant must prove that he was prejudiced thereby; prejudice is not presumed”); United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir.1988) (if the jury “simply supplements the [trial] court’s instructions of law with definitions culled from a dictionary, it remains within the province of the judge to determine” whether the defendant was prejudiced); Williams-Davis, 90 F.3d at 502-03 (D.C.Cir.) (holding presumption of prejudice inapplicable to juror’s reading of a dictionary definition during deliberations). Relying on our prior application of the Remmer presumption, see Basham, 561 F.3d at 319-21; Cheek, 94 F.3d at 141; Stockton, 852 F.2d at 744, we conclude this presumption likewise is applicable when a juror uses a dictionary or similar resource to research" }, { "docid": "16268876", "title": "", "text": "To the extent that these incidents allege external influence, they are not barred from consideration under Rule 606(b). See United States v. Swinton, 75 F.3d 374, 381 (8th Cir.1996). Moreover, third-party communications regarding the substance of the trial are presumptively prejudicial and can constitute grounds for a new trial unless the government establishes that the contact was harmless to the defendant. Wangrow v. United States, 399 F.2d 106, 117 (8th Cir.), cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968). Caldwell’s attempt to apply the third-party communication rule to these facts, however, is flawed. Caldwell offers no evidence that the juror’s husband gained improper knowledge from watching the trial and then imparted that knowledge to the jury or even that any communication between the husband and the jurors occurred. See United States v. Phillips, 609 F.2d 1271, 1274 (8th Cir.1979) (speculative contact between jurors and third parties does not create presumption of prejudice). Rather, Caldwell offers a vague picture of third-party contact with the jury. The district court acted well within its discretion in finding that these nebulous allegations were insufficient to merit further investigation. See United States v. Williams, 11 F.3d 1098, 1100 (8th Cir.1996) (“district court has broad discretion in handling allegations of juror misconduct”). III. Caldwell next argues that the district court erred in denying his motion for judgment of acquittal on the basis of insufficiency of the evidence. In considering this claim we must review the evidence in the light most favorable to the government, reversing only if we conclude that no reasonable jury could have found Caldwell guilty beyond a reasonable doubt. United States v. Quintanilla, 25 F.3d 694, 699 (8th Cir.), cert. denied, — U.S. -, 115 S.Ct. 457, 130 L.Ed.2d 365 (1994). Because Caldwell does not dispute either the existence of the conspiracy or that he bought and sold stolen vehicles bearing tampered-with YINs, the sufficiency challenge centers on whether Caldwell had knowledge of the illegal scheme. Caldwell claims to have been merely an unsuspecting participant; and indeed, the record reveals no direct evidence tending to prove that Caldwell knew" }, { "docid": "22150884", "title": "", "text": "innocuous interventions.” Id. (internal quotation marks omitted). Second, upon satisfaction of this “minimal standard ..., the Remmer I presumption is triggered automatically.” Id. And, “[t]he burden then shifts to the prevailing party to prove that there exists no ‘reasonable possibility that the jury’s verdict was influenced by an improper communication.’ ” Id. (quoting Stephens v. S. Atl. Canners, Inc., 848 F.2d 484, 488-89 (4th Cir.1988)). This “heavy obligation” requires the court to “examine the entire picture, including the factual circumstances and the impact on the juror.” Cheek, 94 F.3d at 142 (internal quotation marks omitted). In determining whether a communication is innocuous, we “turn to the factors the Supreme Court deemed important.” Cheek, 94 F.3d at 141. “These factors are: (1) any private communication; (2) any private contact; (3) any tam pering; (4) directly or indirectly with a juror during trial; (5) about the matter before the jury.” Id. On appeal, Basham contends that the district court abused its discretion in finding that the Government met its heavy burden of rebutting prejudice, while the Government argues that it satisfied its burden. Applying our modified abuse of discretion standard, we affirm the district court’s denial of the motion for a new trial. The Government concedes that Wilson’s contact with the news media outlets constituted improper external communications and triggered the Remmer I presumption of prejudice. Thus, we must only answer whether there exists no “reasonable possibility that the jury’s verdict was influenced by an improper communication.” Id. Courts look at a variety of factors in determining if this standard has been met, including the extent of the improper communication, the extent to which the communication was discussed and considered by the jury, the type of information communicated, the timing of the exposure, and the strength of the Government’s case. See, e.g., Stockton, 852 F.2d at 747 (considering the extent of exposure), United States v. Lloyd, 269 F.3d 228, 240-41 (3d Cir.2001) (considering the timing of exposure, length of jury deliberations and structure of its verdict, and strength of Government’s case); United States v. Williams-Davis, 90 F.3d 490, 497 (D.C.Cir.1996) (considering the" }, { "docid": "1473336", "title": "", "text": "is clearly established federal law for purposes of our review under AEDPA that a defendant is entitled to a hearing when he or she presents a credible allegation of communications or contact between a third party and a juror concerning the matter pending before the jury. 2. Of course, not every allegation of an unauthorized communication between a juror and a third party will trigger the Remmer presumption and its corresponding hearing requirement. See Haley, 802 F.2d at 1537 n. 9 (recognizing that “certain kinds of extrajudicial contacts may amount to nothing more than innocuous interventions that simply could not justify a presumption of prejudicial effect”). To be sure, “due process does not require a new trial every time a juror has been placed in a potentially compromising situation,” Phillips, 455 U.S. at 217, 102 S.Ct. 940, and the Remmer presumption “is not one to be casually invoked,” Stockton, 852 F.2d at 745. Therefore, to be entitled to the Remmer presumption and a Remmer hearing, a “defendant must first establish both that an unauthorized contact was made and that it was of such a character as to reasonably draw into question the integrity of the verdict.” Id. at 743; Billings v. Polk, 441 F.3d 238, 247 n. 6 (4th Cir.2006); see also Stouffer, 738 F.3d at 1214 (“When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the eireum stances of the improper contact and the extent of the prejudice, if any, to the defendant.”); Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir.2005) (a Remmer hearing is required when “the extraneous communication to the juror [is] of a character that creates a reasonable suspicion that further inquiry is necessary to determine whether the defendant was deprived of his right to an impartial jury”). Stated differently, the Remmer presumption and hearing requirement are triggered after the party attacking the verdict satisfies the “minimal standard” of showing that “extrajudicial communications or contacts [between a juror and a third party] were more than innocuous interventions.” United" }, { "docid": "22150885", "title": "", "text": "argues that it satisfied its burden. Applying our modified abuse of discretion standard, we affirm the district court’s denial of the motion for a new trial. The Government concedes that Wilson’s contact with the news media outlets constituted improper external communications and triggered the Remmer I presumption of prejudice. Thus, we must only answer whether there exists no “reasonable possibility that the jury’s verdict was influenced by an improper communication.” Id. Courts look at a variety of factors in determining if this standard has been met, including the extent of the improper communication, the extent to which the communication was discussed and considered by the jury, the type of information communicated, the timing of the exposure, and the strength of the Government’s case. See, e.g., Stockton, 852 F.2d at 747 (considering the extent of exposure), United States v. Lloyd, 269 F.3d 228, 240-41 (3d Cir.2001) (considering the timing of exposure, length of jury deliberations and structure of its verdict, and strength of Government’s case); United States v. Williams-Davis, 90 F.3d 490, 497 (D.C.Cir.1996) (considering the strength of Government’s case, whether information gained was cumulative); United States v. Blumeyer, 62 F.3d 1013, 1017-18 (8th Cir.1995) (same). On balance, these factors indicate a lack of prejudice to Basham. First, the extent of the communication, the most important factor, was minimal; several phone calls to different media outlets, none lasting longer than six minutes. The district court found there was “no showing” that the media outlets even provided any information to Wilson. See United States v. Sampson, 486 F.3d 13, 41-42 (1st Cir.2007), cert. denied, — U.S. —, 128 S.Ct. 2424, 171 L.Ed.2d 234 (2008) (finding no prejudice where communication between juror and witness, during which juror told witness he had a good memory, was “terse, fortuitous, and devoid of substantive content”); Blumeyer, 62 F.3d at 1016-18 (concluding that the presumption of prejudice does not even attach unless extraneous information relates to facts under deliberation and, even assuming it did, finding no prejudice where jury foreman asked lawyer hypothetical question about issue of law); United States v. Diez, 736 F.2d 840, 845-46 (2d" }, { "docid": "426803", "title": "", "text": "determines that prejudice is likely should the government be required to prove its absence”); United States v. Williams-Davis, 90 F.3d 490, 495-97 (D.C.Cir.1996), (holding that Phillips and Olano narrowed the Remmer presumption, and that trial court must determine whether particular intrusion showed “likelihood of prejudice,” which would place on the government the burden of proving harmlessness); United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984) (holding that Phillips altered law such that Remmer rebuttable presumption is no longer applicable, and that burden to establish prejudice rests with defendant); see also United States v. Blumeyer, 62 F.3d 1013, 1017 (8th Cir.1995) (citing Ola- no for proposition that defendant has burden to prove actual prejudice in cases involving extrinsic juror contact pertaining to issues of law, but not to issues of fact). ii. a. The continued vitality of Remmer in this Circuit, however, does not resolve the question whether the presumption is applicable in cases involving a juror’s unauthorized use of Wikipedia. Initially, we observe that an allegation of jury tampering or of a juror’s contact with a third party, such as the incidents that occurred in Remmer, Stockton, Cheek, and Basham, is of a much different character than a juror’s unauthorized use of a dictionary during jury deliberations. Although we previously have considered incidents in which a juror committed misconduct by consulting a dictionary, as described below, the question whether a rebuttable presumption of prejudice arises in such a situation is an issue of first impression in this Court in a case presented on direct appeal. We first encountered a situation involving a juror’s unauthorized use of a dictionary in United States v. Duncan, 598 F.2d 839 (4th Cir.1979), a direct appeal involving a juror’s reference during jury deliberations to dictionary definitions of the terms “motive” and “intent”. Id. at 866. In our abbreviated discussion in which we rejected Duncan’s argument that he was entitled to a new trial on that basis, we observed that “[w]hile reference to the dictionary was misconduct, it was not prejudicial per se,” as Duncan had argued. Id. (emphasis added). The question whether such misconduct" }, { "docid": "22150883", "title": "", "text": "due process.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (internal quotation marks omitted). This rule resulted in what is colloquially called the Remmer I presumption: [A]ny private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Remmer I, 347 U.S. at 229, 74 S.Ct. 450. We apply a familiar process “for analyzing allegations of extrajudicial juror contact.” Cheek, 94 F.3d at 141. First, “[t]he party who is attacking the verdict bears the initial burden of introducing competent evidence that the extrajudicial communications or contacts were more than innocuous interventions.” Id. (internal quotation marks omitted). Second, upon satisfaction of this “minimal standard ..., the Remmer I presumption is triggered automatically.” Id. And, “[t]he burden then shifts to the prevailing party to prove that there exists no ‘reasonable possibility that the jury’s verdict was influenced by an improper communication.’ ” Id. (quoting Stephens v. S. Atl. Canners, Inc., 848 F.2d 484, 488-89 (4th Cir.1988)). This “heavy obligation” requires the court to “examine the entire picture, including the factual circumstances and the impact on the juror.” Cheek, 94 F.3d at 142 (internal quotation marks omitted). In determining whether a communication is innocuous, we “turn to the factors the Supreme Court deemed important.” Cheek, 94 F.3d at 141. “These factors are: (1) any private communication; (2) any private contact; (3) any tam pering; (4) directly or indirectly with a juror during trial; (5) about the matter before the jury.” Id. On appeal, Basham contends that the district court abused its discretion in finding that the Government met its heavy burden of rebutting prejudice, while the Government" } ]

[ { "docid": "2056503", "title": "", "text": "486-487 (Sup.Ct.Nass.Cty.1977), read the House Conference Report as showing an intent not to prohibit a garnishment. If a beneficiary by consenting to the entry of a judgment could in effect assign or alienate the trust funds, the purpose of the statute to protect him against his own improvidence would be thwarted. Moreover, judgment enforcing remedies such as garnishment, levy, attachment and the like can work the same result as an intentional assignment of alienation. They can dilute the benefits established by the trust. Cf. Bryan v. Itasca Cty., Minnesota, 426 U.S. 373, 391, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976). This court will therefore not construe § 1056(d) as permitting' a garnishment or levy by every judgment creditor. II The question remains whether an obligation of a husband to support his wife, which arises by operation of law, may be enforced against the trust funds. The legislative history of 29 U.S.C. § 1056(d) contains no reference to this specific problem. However, a Congressional intent to preempt state law in such a matter is not lightly to be presumed in the absence of an unambiguous declaration of intent. Stone v. Stone, 450 F.Supp. 919 (N.D.Cal.1978). The state-created obligation to support a spouse has consistently been afforded deference, dating back to the turn of the century when the Supreme Court inferred an exception in favor of support claims from the general rule that a debtor’s obligations are discharged by an adjudication in bankruptcy. Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 49 L.Ed. 390 (1904). Since that decision the obligation to support a spouse has generally been enforced against government-created benefits otherwise exempt from the remedies of garnishment, attachment, levy, and the like. See, e. g., Schlaefer v. Schlaefer, 71 App.D.C. 350, 112 F.2d 177 (1940); Huskey v. Batts, 530 P.2d 1375 (Okl.Ct.App.1974); Brown v. Brown, 32 Ohio App.2d 139, 288 N.E.2d 852 (Ohio Ct.App. Cuyahoga County 1972); Dillard v. Dillard, 341 S.W.2d 668 (Tex.Civ.App.1961); In re Guardianship of Bagnall, 238 Iowa 905, 29 N.W.2d 597 (1947). But see, e. g., Utley v. Utley, 355 Mass. 469, 245 N.E.2d 435" } ]

[ { "docid": "8313356", "title": "", "text": "196 U.S. at 77, 25 S.Ct. at 176. This principle remains viable in the context of modern bankruptcy law. Its application in this situation is consistent with recent decisions construing federal statutory enactments so as not to interfere with state enforcement of support obligations. American Tel. & Tel. Co. v. Merry, 592 F.2d 118 (2nd Cir. 1979). Cartledge v. Miller, 457 F.Supp. 1146 (S.D.N.Y. 1978). Cody v. Rieker, 454 F.Supp. 22 (E.D.N.Y. 1978). A. T. & T. v. Merry, supra, is particularly persuasive. In that case, the court found that a state court ordered garnishment to satisfy family support payments was not blocked by provisions of ERISA preempting state law and proscribing alienation of assignment of pension benefits accumulated under that federal statutory scheme. The court rejected a literal statutory interpretation of the ERISA provisions and found that the enforcement actions taken were “impliedly excepted” from the restrictions. 592 F.2d at 121. In reasoning similar to that contained in Wetmore, the court in the A. T. & T. case, quoting Cartledge v. Miller, supra, relied on the “fundamental principle of statutory interpretation (whereby) courts have presumed that the basic police powers of the states, particularly the regulation of domestic relations, are not superseded by federal legislation unless that was the clear and manifest purpose of Congress.” 592 F.2d at 122. These principles of statutory construction seem particularly applicable to one of the questions in the case at bar. We are faced with a statutory proscription which, if read strictly and literally, could well pose a sub stantial impediment to the already difficult task faced by the states in enforcing family support obligations. We do not think Congress intended this result. Failing to find such Congressional intent, a construction of such obligations in the control of the states is mandated. Absent clear and explicit Congressional direction, we believe it unwise to alter the balance between state and federal functions which exists in this area. BRODY, Bankruptcy Judge, participated in the hearing but took no part in the decision of this case." }, { "docid": "17726624", "title": "", "text": "him to have a fresh start in business or commercial life, freed from the obligations and responsibilities which may have resulted from business misfortunes. Unless positively required by direct enactment the courts should not presume a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral or legal, devolved upon the husband to support his wife and to maintain and educate his children. Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904) (emphasis added). Many courts have agreed that this principle holds good in the context of modern bankruptcy law. See, e.g., Matter of Garrison, 5 B.R. 256, 261 (Bkrtcy.E.D.Mich.1980). Section 523(a)(5) contains no positive requirement that there be any change in a policy, the nondischargeability of child support obligations, long fixed in case law and statute. As an Indiana case said of alimony: “Before alimony was made nondischargeable by statute in 1903, bankruptcy case law had already ruled it to be so.” In re Knabe, 8 B.R. 53, 56 (Bkrtcy.S.D.Ind.1980). Judge Norton summarized bankruptcy treatment of these obligations: Throughout the history of the United States bankruptcy law, family support obligations have been excepted from discharge. Prior to statutory enactment, nondischargeability was based on the theory that the obligation to support a spouse or child was not a debt, and that only debts could be discharged. Thus the first statutory exception to discharge for family support obligations was “merely declaratory” of the common law. Norton Bank.L. & Prac. § 27.56. In the legislative history of § 523(a)(5), neither the House nor the Senate Report includes the language “in connection with a separation agreement, divorce decree, or property settlement agreement” as a limitation upon the kind of support protected. The intent is expressed, in the Senate Report, that the language of the bill “will apply to make nondischargeable only alimony, maintenance, or support owed directly to a spouse or dependent.” S.Rep. 95-989, 95th Cong., 2d Sess. (1978), reprinted in Collier on Bankruptcy, App. 3 (15th ed. 1982), U.S.Code Cong. & Admin.News 1978, pp." }, { "docid": "8313355", "title": "", "text": "Court enunciated a principle of statutory construction which can give guidance in this situation. In deciding that an alimony judgment could not be discharged, it noted: “The bankruptcy law should receive such an interpretation as will effectuate its beneficent purposes, and not make it an instrument to deprive dependent wife (sic) and children of support and maintenance due them from the husband and father, which it has ever been the purpose of the law to enforce. Systems of bankruptcy are designed to relieve the honest debtor from the weight of indebtedness which has become oppressive, and to permit him to have a fresh start in business or commercial life, freed from the obligations and responsibilities which may have resulted from business misfortunes. Unless positively required by direct enactment the courts should not presume a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral or legal, devolved upon the husband to support his wife and to maintain and educate his children.” 196 U.S. at 77, 25 S.Ct. at 176. This principle remains viable in the context of modern bankruptcy law. Its application in this situation is consistent with recent decisions construing federal statutory enactments so as not to interfere with state enforcement of support obligations. American Tel. & Tel. Co. v. Merry, 592 F.2d 118 (2nd Cir. 1979). Cartledge v. Miller, 457 F.Supp. 1146 (S.D.N.Y. 1978). Cody v. Rieker, 454 F.Supp. 22 (E.D.N.Y. 1978). A. T. & T. v. Merry, supra, is particularly persuasive. In that case, the court found that a state court ordered garnishment to satisfy family support payments was not blocked by provisions of ERISA preempting state law and proscribing alienation of assignment of pension benefits accumulated under that federal statutory scheme. The court rejected a literal statutory interpretation of the ERISA provisions and found that the enforcement actions taken were “impliedly excepted” from the restrictions. 592 F.2d at 121. In reasoning similar to that contained in Wetmore, the court in the A. T. & T. case, quoting Cartledge v. Miller, supra, relied" }, { "docid": "8313354", "title": "", "text": "be confirmed. As previously noted, Section 1325(a)(3) of the Bankruptcy Code requires Chapter 13 plans to be filed in good faith if they are to be confirmed. Thus, if the court were to stay Michigan’s enforcement of the debtor’s child support obligation under Section 362 of the Bankruptcy Code, the child support arrearage would increase and the court would be compelled to deny confirmation of the plan because it was not proposed in good faith. The foregoing would substantially prejudice the interest of the State of Michigan and the debt- or’s dependent child. PATTON, Bankruptcy Judge (concurring). Section 362 provides broad relief for a debtor from collection attempts by creditors. We are not convinced, however, that the Section 362 stay was intended to block the collection of alimony, maintenance and child support payments in a case filed under Chapter 13 of the Code after judgment has been entered in state divorce proceedings. The Code reflects a strong policy against its being used by a debtor to avoid such obligations. In Wetmore v. Markoe, supra, the Court enunciated a principle of statutory construction which can give guidance in this situation. In deciding that an alimony judgment could not be discharged, it noted: “The bankruptcy law should receive such an interpretation as will effectuate its beneficent purposes, and not make it an instrument to deprive dependent wife (sic) and children of support and maintenance due them from the husband and father, which it has ever been the purpose of the law to enforce. Systems of bankruptcy are designed to relieve the honest debtor from the weight of indebtedness which has become oppressive, and to permit him to have a fresh start in business or commercial life, freed from the obligations and responsibilities which may have resulted from business misfortunes. Unless positively required by direct enactment the courts should not presume a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral or legal, devolved upon the husband to support his wife and to maintain and educate his children.”" }, { "docid": "19060757", "title": "", "text": "as alimony. Likewise, in Poolman v. Poolman, 289 F.2d 332 (8th Cir. 1961), the Eighth Circuit found nondischargeable a debt enforced by a state court judgment against a husband whereby, under the terms of a property settlement, he was to make certain payments on a note secured by a deed of trust on the family residence which the wife had been awarded. The court found an obligation on the husband’s part to maintain and support a family which “includes the obligation to keep a roof over their heads.” Id. at 335. The District Court for the District of Nebraska in In re Baldwin, 250 F.Supp. 533 (D.Neb.1966) followed the rule enunciated in Poolman. The court in Baldwin noted that while household furniture and an automobile “may not be quite so basic as a roof over the wife’s head, they partake of the same nature.” Id. at 534. The court rejected the bankrupt’s contention that Congress intended a distinction to be made “between an obligation to make direct alimony and/or support payments in cash or property to a divorced wife and the obligation to make payments on loans secured by marital property.” Id. That a husband owes a duty and obligation to provide maintenance and support for his wife is a principle of long standing. In Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 176, 49 L.Ed. 390 (1904), the Supreme Court observed: “Unless positively required by direct enactment the courts should not presume a design upon the Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife In the February 1974 Judgment of Limited Divorce, the Superior Court directed that defendant make support payments in the amount of $50.00 per month and, in addition, to provide the plaintiff with such additional amounts as may be needed to reimburse her on account of any prior joint or joint-and-several obligations incurred by the parties. The November 15, 1978, Judgment Order revives this latter requirement. It is apparent that this reimbursement provision" }, { "docid": "1096338", "title": "", "text": "to see if they were in fact imposed for the support of the spouse and children. Both parties are permitted to present extrinsic evidence as to the underlying nature of the debt. Therefore, the Bankruptcy Court must first determine whether a duty of support exists between the parties under applicable state law and apply federal law to characterize the debts arising from the relationship. The Court will then determine the effect of bankruptcy on these debts. Pennsylvania law allows support payments to be made not only in the form of cash payments but also in the form of mortgage payments, payment of medical bills, etc. See Warner v. Warner, 198 Pa.Super. 124, 181 A.2d 888 (1962); Commonwealth v. Miller, 202 Pa.Super. 573, 198 A.2d 373 (1964). The decision in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) makes clear that what constitutes alimony, maintenance and support for purposes of nondischargeability is a matter of federal law. Further, the legislative history of § 523 makes clear that “What constitutes alimony, maintenance or support will be determined under bankruptcy laws, not state law.” H.R.Rep.No.95-595, 95th Cong., 1st Sess. 364 (1977), U.S.Code Cong. & Admin.News 1978 at 6319. In Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904) the Supreme Court stated: The bankruptcy law should receive such an interpretation which will effectuate its beneficent purposes, and not make it an instrument to deprive dependent wife and children of support and maintenance due them from the husband and father, which it has been the purpose to enforce. Systems of bankruptcy are designed to relieve the honest debtor from the weight of indebtedness which has become oppressive, and to permit him to have a fresh start in business or commercial life, freed from the obligations and responsibilities which may have resulted from business misfortunes. Unless positively required by direct enactment the courts should not presume a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral or legal, devolved upon the" }, { "docid": "726084", "title": "", "text": "ancient family law right of maintenance and support and the issuance of process to enforce that right. As a fundamental principle of statutory interpretation, courts have presumed that the basic police powers of the States, particularly the regulation of domestic relations, are not superseded by federal legislation unless that was the clear and manifest purpose of Congress. An important and pervasive state law policy is to enforce the support rights of dependent spouses and children, even when they require the attachment of assets or earnings normally inalienable or unassignable under state law. Consequently, the Supreme Court has held that “[ujnless positively required by direct enactment the courts should not presume a design upon the part of Congress in relieving the unfortunate debtor to make the law a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife and to maintain and educate his children.” The debates and reports on ERISA furnish little or no direction toward the precise issue: nothing contained therein suggests that the proscription against assignment or alienation was intended to include family support payments. Indeed, an overall congressional purpose not to interfere with the States’ power to enforce family support obligations may be gleaned from judicial interpretation of exemption provisions in other federal statutes. Though not exactly in parí passu, they indicate a general congressional intent not to preclude enforcement of family support obligations. Provisions so interpreted include the exemption sections of the Social Security Act, the Veterans Benefits Act, and the Railway Retirement Act, as well as the Bankruptcy Act’s provision for discharge of prior obligations. The rationale behind such judicial interpretations of the will of Congress was aptly summarized by Judge, later Justice, Rutledge in Schlaefer v. Schlaefer: “[T]he usual purpose of exemptions is to relieve the person exempted from the pressure of claims hostile to his dependents’ essential needs as well as his own personal ones, not to relieve him of familial obligations and destroy what may be the family’s last and only security, short of public relief.” Moreover, the goals underlying ERISA support the reasoning" }, { "docid": "22080709", "title": "", "text": "employee benefit plan,” ERISA § 514(a), 29 U.S.C. § 1144(a).and also from the alienation and assignment proscription of ERISA § 206(d)(1), 29 U.S.C. § 1056(d)(1). Two District Courts in this circuit have already so concluded. Cartledge v. Miller, 457 F.Supp. 1146 (S.D.N.Y.1978); Cody v. Riecker, 454 F.Supp. 22 (E.D.N.Y.1978), appeal pending, No. 78-7460 (2d Cir.). In Cartledge, a state court order of garnishment issued against the pension fund of a husband to meet support obligations, including arrearages, owed to his wife. Pension administrators of the husband’s plan sought to enjoin enforcement of the state court order on the same grounds asserted here. Judge Weinfeld determined that the “generalized proscriptions” of ERISA’s anti-alienation and assignment provision and the statute’s preemption clause were “not sufficient to infer that Congress meant to preclude the ancient family law right of maintenance and support and the issuance of process to enforce that right.” 457 F.Supp. at 1154. This construction is consistent, the court continued, with the “fundamental principle of statutory interpretation [whereby] courts have presumed that the basic police powers of the States, particularly the regulation of domestic relations, are not superseded by federal legislation unless that was the clear and manifest purpose of Congress.” Id. (footnote omitted). Two months prior to the Cartledge decision the same result was reached in Cody v. Riecker, 454 F.Supp. 22 (E.D.N.Y.1978). There a woman obtained a Family Court judgment against her husband for support arrears. When the county sheriff attempted to levy on his pension benefits to enforce the judgment, trustees of the pension plan sought an injunction, contending that ERI-SA barred execution upon the benefits. Judge Nickerson also refused to presume congressional intent under the statute to preempt and prevent court ordered enforcement of the state-created spousal obligation of support “in the absence of an unambiguous declaration of intent.” 454 F.Supp. at 24. Thus an exception to ERISA’s provisions was implied in the limited instance of enforcement of a retiree’s family obligations. 454 F.Supp. at 25. Although this circuit appears to be the first appellate court confronted with the present issue, there is additional case law that" }, { "docid": "12998919", "title": "", "text": "garnish a spouse's income to satisfy a support obligation was not preempted by ERISA. The court noted that the garnishment action dealt with the \" 'ancient family law right of maintenance,’ ” id. at 122 (quoting Cartledge v. Miller, 457 F.Supp. 1146, 1154 (S.D.N.Y. 1978)), and that the regulation of domestic affairs has long been the province of state courts, Merry, 592 F.2d at 122. Hence, the court reasoned that Congress did not intend to preempt this area. Accord Savings & Profit Sharing Fund of Sears Employees v. Gago, 717 F.2d 1038, 1040 (7th Cir.1983); Bowen v. Bowen, 715 F.2d 559, 560 (11th Cir.1983) (per curiam); Operating Engineers’ Local #428 Pension Trust Fund v. Zamborsky, 650 F.2d 196, 198-99 (9th Cir.1981). The Second Circuit, however, has emphasized the narrowness of the remote and peripheral exception. E.g., Stone & Webster Eng’g Corp. v. Ilsley, 690 F.2d 323, 329 (2d Cir.1982), aff’d, — U.S. -, 103 S.Ct. 3564, 77 L.Ed.2d 1405 (1983). In contrast, a cause of action for discharge in violation of public policy is not recognized in every state, see infra note 10, and employer-employee relations have not been solely a concern of the states, e.g., 29 U.S.C. § 141-187 (1982) (Labor Management Relations Act); 29 U.S.C. §§ 201-219 (1982) (Fair Labor Standards Act); 29 U.S.C. §§ 651-678 (1982) (Occupational Safety and Health Act). Also unlike Merry which involved a basic state police power, i.e., the state control of domestic relations, this appeal concerns the remedies available to a trustee of an ERISA pension plan who is terminated for performing his duties under ERISA. Therefore, in our view, this case does not fall within the peripheral and remote exception. . The district court, without having the benefit of the Supreme Court’s decision in Shaw, interpreted Alessi as addressing only \"the specific issue before it.\" After the Court’s decision in Shaw, the district court’s narrow interpretation of Alessi is untenable. . The breadth of the premptive effect of Section 1144(a) is evidenced by the exemption for criminal laws of general applicability, 29 U.S.C. § 1144(b)(4) (1982), and by Congress’ refusal to" }, { "docid": "726083", "title": "", "text": "other hand, it is a commonplace that a literal interpretation of the words of a statute is not always a safe guide to its meaning” and should be “disregarded when it defeats the manifest purpose of the statute as a whole.” Thus defendants argue that an exception to the exemption embodied in ERISA’s anti-assignment or alienation provisions must be implied in order to secure enforcement of Cozart’s obligations to support his dependents. The anti-assignment or alienation sections of ERISA have been authoritatively interpreted to preclude “[a]ny direct or indirect arrangement (whether revocable or irrevocable) whereby a party acquires from a participant or beneficiary a right or interest enforceable against the plan in, or to, all or any part of a plan benefit payment which is, or may become, payable to the participant or beneficiary.” And Congress intended that ERISA’s provisions would “supersede any and all State laws insofar as they may . . . relate to any employee benefit plan.” These generalized proscriptions, however, are not sufficient to infer that Congress meant to preclude the ancient family law right of maintenance and support and the issuance of process to enforce that right. As a fundamental principle of statutory interpretation, courts have presumed that the basic police powers of the States, particularly the regulation of domestic relations, are not superseded by federal legislation unless that was the clear and manifest purpose of Congress. An important and pervasive state law policy is to enforce the support rights of dependent spouses and children, even when they require the attachment of assets or earnings normally inalienable or unassignable under state law. Consequently, the Supreme Court has held that “[ujnless positively required by direct enactment the courts should not presume a design upon the part of Congress in relieving the unfortunate debtor to make the law a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife and to maintain and educate his children.” The debates and reports on ERISA furnish little or no direction toward the precise issue: nothing contained therein suggests that the proscription against" }, { "docid": "1096339", "title": "", "text": "or support will be determined under bankruptcy laws, not state law.” H.R.Rep.No.95-595, 95th Cong., 1st Sess. 364 (1977), U.S.Code Cong. & Admin.News 1978 at 6319. In Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904) the Supreme Court stated: The bankruptcy law should receive such an interpretation which will effectuate its beneficent purposes, and not make it an instrument to deprive dependent wife and children of support and maintenance due them from the husband and father, which it has been the purpose to enforce. Systems of bankruptcy are designed to relieve the honest debtor from the weight of indebtedness which has become oppressive, and to permit him to have a fresh start in business or commercial life, freed from the obligations and responsibilities which may have resulted from business misfortunes. Unless positively required by direct enactment the courts should not presume a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral or legal, devolved upon the husband to support his wife and to maintain and educate his children. 196 U.S. 77, 25 S.Ct. 175. These principles remain viable in the Bankruptcy Code, Section 523. The Code does not interfere with state enforcement of support obligations. American Tel. & Tel. Co. v. Merry, 592 F.2d 118 (2nd Cir. 1979). See also Cartledge v. Miller, 457 F.Supp. 1146 (S.D.N.Y.1978), Cody v. Riek er, 454 F.Supp. 22 (E.D.N.Y.1978). In the case before us, the largest debt in question arose when the Plaintiff and Defendant as husband and wife obtained a Gramatan Home Improvement Loan to repair their jointly owned property. This debt is specifically included among the financial obligations the Defendant agreed to bear. Providing a house in which his children and their mother live is of the nature of support. It is clear from the evidence presented that the very low monthly support payments could not accomplish that result and was balanced against the Defendant’s obligation to pay certain household debts. The expert testimony was clear that in view of the Defendant’s net" }, { "docid": "22444302", "title": "", "text": "in § 1056(d)(1) indicates that Congress intended to prohibit only voluntary acts by the pension plan beneficiaries. They point out that Congress has clearly prohibited garnishments and attachments when that is its intention. They list ten different statutes in which Congress has made a distinction between voluntary assignments and involuntary encroachments on benefits by way of garnishment, execution, attachment, etc. See, e. g., 5 U.S.C. § 8346 [Civil Service retirement benefits]; 10 U.S.C. § 1450 [benefits under serviceman’s survivor benefits plan]. This is a strong indication that Congress recognized the difference between voluntary and involuntary encroachments on benefit funds and has stated it specifically when both are forbidden. Nevertheless, Congress did use the word “voluntary” in specifying those assignments which qualify for the 10 per cent exception in § 1056(dX2). This can reasonably be read as an indication that the preceding language in § 1056(d)(1) included all encroachments, both voluntary and involuntary. C. The court decisions which have dealt with the issues are not particularly helpful. By far the greatest number are concerned with subjecting pension plan benefits to the payment of alimony and family support. The federal cases have construed ERISA’s provision against assignment or alienation as prohibiting garnishments generally, but have found an exception where the purpose of the garnishment is to enforce the duty of maintenance and support owed by a plan beneficiary to a spouse or dependents. E. g., American Telephone & Telegraph Co. v. Merry, 592 F.2d 118 (2d Cir. 1979); Senco of Florida, Inc. v. Clark, supra; Cartledge v. Miller, supra; Cody v. Riecker, 454 F.Supp. 22 (E.D.N.Y.1978), aff’d, 594 F.2d 314 (2d Cir. 1979). The state courts have split on the subject. The Appellate Division of the New York Supreme Court held in National Bank of North America v. IBEW Pension Funds, 69 A.D.2d 679, 419 N.Y.S.2d 127, 131 (1979), that the anti-assignment provisions of ERISA do not prohibit garnishments. On the other hand, the Supreme Court of Missouri found in Electrical Workers v. IBEW-NECA Holiday Trust, 583 S.W.2d 154, 157 (1979), that “ERISA clearly preempts the rights of creditors to satisfy a" }, { "docid": "18791837", "title": "", "text": "rather than as a property settlement.” 661 F.2d 303. The Bankruptcy Court here, as there, found that the parties intended the payments were to be for support rather than as a property settlement. “A district court has authority to set aside a finding of fact by a bankruptcy court only if it is clearly erroneous. Bankruptcy Rule 810.” Id. 661 F.2d p. 303. See also Shacter v. Shacter, 467 F.Supp. 64 (D.C.Md.1979), affd on district court opinion, 610 F.2d 813 (4th Cir.1979). There the Court said that in determining whether certain obligations are liabilities for support “a court should look to the substance of the obligation, and not to labels imposed by state law.” In Poolman v. Poolman, 289 F.2d 332 (8th Cir.1961), husband agreed to pay to wife a stipulated sum each month for support and maintenance of their three children, and to make the required payments on a deed of trust on a home which he conveyed to wife. The Court held that the obligation to make the payments on the deed of trust was not dischargeable in bankruptcy. As a part of its reasoning, it held that the language in Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 176, 49 L.Ed. 390, that unless positively required by direct enactment the Court should not presume “a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife and to maintain and educate his children.” Though it is clear that the language of the Bankruptcy Act as it regards the fact of whether a sum is alimony is to be determined by federal law, the federal law and the law in Virginia are in accord. The “authorities are clear, and the parties do not dispute, that ‘alimony’ in section 17(a)(7) of the Bankruptcy Act means payments in the nature of support for a former spouse.” [citations omitted]. Nichols v. Hensler, 528 F.2d 304, 307 (7th Cir.1976). In Stephens v. Stephens, 465 F.Supp. 52, 53" }, { "docid": "1096340", "title": "", "text": "husband to support his wife and to maintain and educate his children. 196 U.S. 77, 25 S.Ct. 175. These principles remain viable in the Bankruptcy Code, Section 523. The Code does not interfere with state enforcement of support obligations. American Tel. & Tel. Co. v. Merry, 592 F.2d 118 (2nd Cir. 1979). See also Cartledge v. Miller, 457 F.Supp. 1146 (S.D.N.Y.1978), Cody v. Riek er, 454 F.Supp. 22 (E.D.N.Y.1978). In the case before us, the largest debt in question arose when the Plaintiff and Defendant as husband and wife obtained a Gramatan Home Improvement Loan to repair their jointly owned property. This debt is specifically included among the financial obligations the Defendant agreed to bear. Providing a house in which his children and their mother live is of the nature of support. It is clear from the evidence presented that the very low monthly support payments could not accomplish that result and was balanced against the Defendant’s obligation to pay certain household debts. The expert testimony was clear that in view of the Defendant’s net income of $600.00 - $750.00 per month, the sum of $40.00 monthly would be very low support. We conclude that the payment of these debts was actually in the nature of support and the Defendant’s future obligation to pay these debts pursuant to the Agreement is not discharged by this proceeding. Somewhat sadly it appears that this technique of low cash payments and higher obligations on leasehold debts permitted Plaintiff to claim a larger payment from the Department of Public Welfare. In fact, over the years the Department of Public Welfare has been the real provider of support for the children and their mother. The Plaintiff’s low income now permits Neighborhood Legal Services to defend her in this matter. Therefore, so that all these matters may be adjudicated by a court of continuous jurisdiction, this Court grants relief from the automatic stay to the Plaintiff on any claim for change in support which might be properly raised by either party before the Domestic Relations Court of Pennsylvania. An appropriate Order will be entered." }, { "docid": "23512584", "title": "", "text": "issue here be preempted.”). This he has utterly failed to do. B. ERISA’s spendthrift provision states simply that “[ejach pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” 29 U.S.C. § 1056(d)(1). Because the property transfer does not fall explicitly into the QDRO exception created by the REA, the majority, with only a cursory analysis of ERISA and the proper application of the spendthrift provision, holds that ERISA’s spendthrift provision precludes application of California law. The case law and legislative history preceding the REA belie this conclusion. It became clear shortly after ERISA’s passage in 1974 that Congress had left open a major question concerning the interpretation of the statute: whether the spendthrift provision enacted in that year preempted state court orders directing transfer of pension benefits incident to divorce and separation to the non-employee spouse and dependents. While the generally worded language of the spendthrift provision on its face would seem to preclude such transfers, “[o]n the other hand, it is a commonplace that a literal interpretation of the words of a statute is not always a safe guide to its meaning.” Cartledge v. Miller, 457 F.Supp. 1146, 1154 (S.D.N.Y.1978) (quoting Peter Pan Fabrics v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) (L. Hand)). The issue of whether the spendthrift restriction applied to spouses was raised in case after case. See, e.g., Savings & Profit Sharing Funds of Sears Employees v. Gago, 717 F.2d 1088 (7th Cir.1983); Bowen v. Bowen, 715 F.2d 559 (11th Cir.1983) (per curiam); Operating Engineers’ Local No. 428 v. Zamborsky, 650 F.2d 196 (9th Cir.1981); A.T. & T. v. Merry, 592 F.2d 118 (2d Cir.1979); Cody v. Riecker, 594 F.2d 314 (2d Cir.1979); Ball v. Revised Retirement Plan, 522 F.Supp. 718 (D.Col.1981); Central States, Southeast & Southwest Areas Pension Fund v. Parr, 480 F.Supp. 924 (E.D.Mich.1979); Senco of Florida, Inc. v. Clark, 473 F.Supp. 902 (M.D.Fla.1979); Cartledge v. Miller, 457 F.Supp. 1146 (S.D.N.Y.1978); Western Electr. Co. v. Traphagen, 166 N.J.Super. 418, 400 A.2d 66 (1979); Biles v. Biles, 163 N.J.Super. 49, 394 A.2d 153 (1978); Wanamaker" }, { "docid": "17726623", "title": "", "text": "has been to give the debtor a fresh start by releasing him from his outstanding debts by discharge, the legal right not to pay a debt, this purpose has always been counterbalanced by a recognition that the nature of some debts should except them from discharge. The right to a discharge is created by law, a matter of statutory grace, while the obligation of support has deeper roots. Family support obligations have traditionally been considered a duty, not a debt, and as such exempt from a bankruptcy discharge. The Supreme Court early recognized this, and expressed the principle of statutory construction we follow here: The bankruptcy law should receive such an interpretation as will effectuate its beneficent purposes, and not make it an instrument to deprive dependent wife and children of support and maintenance due them from the husband and father, which it has ever been the purpose of the law to enforce. Systems of bankruptcy are designed to relieve the honest debtor from the weight of indebtedness which has become oppressive, and to permit him to have a fresh start in business or commercial life, freed from the obligations and responsibilities which may have resulted from business misfortunes. Unless positively required by direct enactment the courts should not presume a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral or legal, devolved upon the husband to support his wife and to maintain and educate his children. Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904) (emphasis added). Many courts have agreed that this principle holds good in the context of modern bankruptcy law. See, e.g., Matter of Garrison, 5 B.R. 256, 261 (Bkrtcy.E.D.Mich.1980). Section 523(a)(5) contains no positive requirement that there be any change in a policy, the nondischargeability of child support obligations, long fixed in case law and statute. As an Indiana case said of alimony: “Before alimony was made nondischargeable by statute in 1903, bankruptcy case law had already ruled it to be so.” In re Knabe, 8" }, { "docid": "22080708", "title": "", "text": "“all laws, decisions, rules, regulations, or other State action having the effect of law . . . .” ERISA § 514(c)(1), 29 U.S.C. § 1144(c)(1). They contend that Mrs. Merry’s state court garnishment order is such a state law and that therefore it must be regarded as preempted absent an express statutory exception. Such a strict, literal construction, however, would necessarily lead to the unreasonable conclusion that Congress intended to preempt even those state laws that only in the most remote and peripheral manner touch upon pension plans. See Stone v. Stone, 450 F.Supp. 919, 932 (N.D.Cal.1978), appeal pending, No. 78-2313 (9th Cir.). And, in this particular instance, that interpretation would include placing a limitation on state authority to enforce alimony and support orders where the monetary source to be garnisheed is a spouse’s income derived from pension payments. We reject appellants’ proffered statutory construction and believe the more reasonable interpretation to be that a garnishment order used to satisfy court ordered family support payments is impliedly excepted from preempted state law relating “to any employee benefit plan,” ERISA § 514(a), 29 U.S.C. § 1144(a).and also from the alienation and assignment proscription of ERISA § 206(d)(1), 29 U.S.C. § 1056(d)(1). Two District Courts in this circuit have already so concluded. Cartledge v. Miller, 457 F.Supp. 1146 (S.D.N.Y.1978); Cody v. Riecker, 454 F.Supp. 22 (E.D.N.Y.1978), appeal pending, No. 78-7460 (2d Cir.). In Cartledge, a state court order of garnishment issued against the pension fund of a husband to meet support obligations, including arrearages, owed to his wife. Pension administrators of the husband’s plan sought to enjoin enforcement of the state court order on the same grounds asserted here. Judge Weinfeld determined that the “generalized proscriptions” of ERISA’s anti-alienation and assignment provision and the statute’s preemption clause were “not sufficient to infer that Congress meant to preclude the ancient family law right of maintenance and support and the issuance of process to enforce that right.” 457 F.Supp. at 1154. This construction is consistent, the court continued, with the “fundamental principle of statutory interpretation [whereby] courts have presumed that the basic police powers" }, { "docid": "12998918", "title": "", "text": "29 U.S.C. § 1144(b)(4) (1982). Nevertheless, because we believe that a state law which governs the remedies available to an ERISA fiduciary discharged for complying with ERISA regulates, even under a narrow interpretation, the \"terms and conditions” of a pension plan, we need not decide what limiting effect, if any, should be given to this phrase. . This \"virtually unique” preemption provision was intended to create a body of federal substantive law regulating pension plans. Franchise Tax Bd. of the State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, -n. 26, 103 S.Ct. 2841, 2854 n. 26, 77 L.Ed.2d 420 (1983). . The Supreme Court in Shaw recognized that some state actions may be “too tenuous, remote, or peripheral” to warrant preemption. Shaw v. Delta Air Lines, Inc., 463 U.S. 85,-n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490 (1983). The Court cited, without explicitly approving, American Tel. & Tel. Co. v. Merry, 592 F.2d 118 (2d Cir.1979). In Merry, the Second Circuit held that an action to garnish a spouse's income to satisfy a support obligation was not preempted by ERISA. The court noted that the garnishment action dealt with the \" 'ancient family law right of maintenance,’ ” id. at 122 (quoting Cartledge v. Miller, 457 F.Supp. 1146, 1154 (S.D.N.Y. 1978)), and that the regulation of domestic affairs has long been the province of state courts, Merry, 592 F.2d at 122. Hence, the court reasoned that Congress did not intend to preempt this area. Accord Savings & Profit Sharing Fund of Sears Employees v. Gago, 717 F.2d 1038, 1040 (7th Cir.1983); Bowen v. Bowen, 715 F.2d 559, 560 (11th Cir.1983) (per curiam); Operating Engineers’ Local #428 Pension Trust Fund v. Zamborsky, 650 F.2d 196, 198-99 (9th Cir.1981). The Second Circuit, however, has emphasized the narrowness of the remote and peripheral exception. E.g., Stone & Webster Eng’g Corp. v. Ilsley, 690 F.2d 323, 329 (2d Cir.1982), aff’d, — U.S. -, 103 S.Ct. 3564, 77 L.Ed.2d 1405 (1983). In contrast, a cause of action for discharge in violation of public policy is not" }, { "docid": "22080707", "title": "", "text": "is ERISA § 206(d)(1), 29 U.S.C. § 1056(d)(1). It states that “[ejach pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” A provision almost identical to ERISA § 206 is found in Internal Revenue Code § 401(a)(13), 26 U.S.C. § 401(a)(13), wherein assignment or alienation of benefits is also prohibited if a pension plan is to be considered a tax qualified plan. The other ERISA provision that bears on the present issue is section 514(a) which provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . .” 29 U.S.C. § 1144(a). AT&T, relying on the plain language of these statutory sections and silent legislative history surrounding the question of whether an implied exception exists for garnisheeing pension payments to meet court ordered family support obligations, urges a literal reading of these statutory provisions. Turning to ERISA’s preemption clause, appellants argue that those state laws preempted by ERISA are broadly defined to include “all laws, decisions, rules, regulations, or other State action having the effect of law . . . .” ERISA § 514(c)(1), 29 U.S.C. § 1144(c)(1). They contend that Mrs. Merry’s state court garnishment order is such a state law and that therefore it must be regarded as preempted absent an express statutory exception. Such a strict, literal construction, however, would necessarily lead to the unreasonable conclusion that Congress intended to preempt even those state laws that only in the most remote and peripheral manner touch upon pension plans. See Stone v. Stone, 450 F.Supp. 919, 932 (N.D.Cal.1978), appeal pending, No. 78-2313 (9th Cir.). And, in this particular instance, that interpretation would include placing a limitation on state authority to enforce alimony and support orders where the monetary source to be garnisheed is a spouse’s income derived from pension payments. We reject appellants’ proffered statutory construction and believe the more reasonable interpretation to be that a garnishment order used to satisfy court ordered family support payments is impliedly excepted from preempted state law relating “to any" }, { "docid": "22444303", "title": "", "text": "pension plan benefits to the payment of alimony and family support. The federal cases have construed ERISA’s provision against assignment or alienation as prohibiting garnishments generally, but have found an exception where the purpose of the garnishment is to enforce the duty of maintenance and support owed by a plan beneficiary to a spouse or dependents. E. g., American Telephone & Telegraph Co. v. Merry, 592 F.2d 118 (2d Cir. 1979); Senco of Florida, Inc. v. Clark, supra; Cartledge v. Miller, supra; Cody v. Riecker, 454 F.Supp. 22 (E.D.N.Y.1978), aff’d, 594 F.2d 314 (2d Cir. 1979). The state courts have split on the subject. The Appellate Division of the New York Supreme Court held in National Bank of North America v. IBEW Pension Funds, 69 A.D.2d 679, 419 N.Y.S.2d 127, 131 (1979), that the anti-assignment provisions of ERISA do not prohibit garnishments. On the other hand, the Supreme Court of Missouri found in Electrical Workers v. IBEW-NECA Holiday Trust, 583 S.W.2d 154, 157 (1979), that “ERISA clearly preempts the rights of creditors to satisfy a judgment from payments made under an employee pension benefit plan.” Other state cases concerning attachments or garnishments against pension plan benefits to enforce family support obligations either have assumed a general prohibition against involuntary encroachments or found it unnecessary to decide that question, but have recognized the validity of garnishments for family support. E. g., Western Electric Co. v. Traphagen, 400 A.2d 66, 70 (N.J.Super. 1979); Commonwealth v. Aluminum Co. of America, 398 A.2d 179, 182 (Pa.Super.1979); Biles v. Biles, 394 A.2d 153, 155 (N.J.Ch. 1978). D. GM relies strongly on an administrative interpretation of the anti-assignment provisions of ERISA which we find persuasive. ERISA resulted from the joint efforts of four congressional committees. The House Ways and Means Committee and the Senate Finance Committee reported out bills dealing with the tax aspects of pension funds. The House Education and Labor Committee and the Senate Labor and Public Welfare Committee reported out bills which dealt primarily with vesting, funding and participation in private pension plans. ERISA emerged as the product of a joint conference after" } ]

[ { "docid": "9871754", "title": "", "text": "does not infringe the Go2 claims merely based on the fact that Expe-dia does not transmit the location of a PLA to the user. 4. Whether Claims 27, 28, 41, And 42 Must Be Invalid In Order For Ex-pedía To Infringe Them Expedia asserts that even if it did infringe claims 27, 28, 41, and 42 of the ’692 patent, those claims would necessarily be invalid for anticipation in light of the prior art ’622 patent. Expedia relies on the admissions of Civix’s expert, Gehani, from his deposition. As discussed above, Civix submits paragraphs 26-27 of the Gehani Declaration where Gehani explains his alleged deposition admissions. Declarations that contradict earlier deposition testimony are typically insufficient to create genuine issues of fact. See Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir.2001) (“where a deposition and affidavit are in conflict, the affidavit is to be regarded unless it is demonstrable that the statement in the deposition was mistaken”). As discussed above, under the specific facts here, Gehani expressly reserved the right to provide further testimony on the validity of the ’692 claims in light of the ’622 patent. To the extent Gehani provided answers at his deposition that are now contradicted by his deposition, Expe-dia can raise those issues in its cross examination of Gehani. Nonetheless, Geha-ni’s declaration creates triable issues of fact regarding whether the ’622 patent anticipates the asserted claims of the ’692 patent. IV. Invalidity Under 35 U.S.C. §§ 102 And 103 Expedia contends that claims 6, 47, and 57 of the ’622 patent, claims 1, 6, and 22 of the ’307 patent, and claims 1, 5, 7, 14, and 21 of the ’291 patent are invalid as “anticipated” under 35 U.S.C. § 102. In order for a prior art reference to anticipate a patent claim, a single prior art reference must disclose each and every limitation of the claim. Eolas Techs. Inc. v. Microsoft Corp., 399 F.3d 1325, 1335 (Fed.Cir.2005). Expedia also contends that claim 26 of the ’622 patent and claim 23 of the ’291 patent are invalid as obvious under 35 U.S.C. §" } ]

[ { "docid": "9528867", "title": "", "text": "the ’313 patent. This case calls for an examination of three patents: a Lazarri patent, the ’313, and the ’920 patent. This comparison is important because Lazarri was issued pri- or to the ’313 patent and, as prior art, if the ’313 patent’s claims encompassed La-zarri’s claims, the U.S.P.T.O. presumably would not have issued the’313 patent. In addition, in order to obtain the ’313 patent, ZIMMER made admissions before the U.S.P.T.O. that distinguished the ’313 from the Lazarri patent. These admissions are relevant to the present dispute. Similarly, ’920 was issued by the U.S.P.T.O. after the ’313. If the ’920’s patent’s claims infringed the claims of ’313, with ’313 being prior art, then the U.S.P.T.O. presumably would not have issued the’920 patent. Much of the discussion in the parties’ memoranda supporting and opposing summary judgment address three key differences between the ’313 patent and the accused products. These are summarized as follows: Modular stem extension: The ’313 patent requires two modular components; a base and a stem extension. The ’313 patent requires that the stem extension be comprised of a single part, with two offset longitudinal axes that are available in varying sizes, so that any of its stem extensions can be attached to any of its base portions. (ZIMMER Memorandum Supporting Summary Judgment, Ex. 1 at 4:67-5:3; HOWMEDICA’s Memorandum in Opposition to Summary Judgment, p. 22). The axes allow for radial adjustment to achieve a proper fit each individual patient. (Id.) Conversely, HOWMEDICA’s products do not include the same or similar stem extension with a means of mounting them into bases. HOWMEDICA’s products have only one longitudinal axis of orientation. (HOWMEDICA’s Memorandum Supporting Its Motion for Summary Judgment, pp. 12-13). HOWMEDICA’s products consist of offset adaptor components and stem components, each of which are sold separately and are combined by a threaded screw connection. The two components then are affixed to each other permanently through the use of a third piece, a locking ring, and then are implanted. (HOWMEDICA’s Memorandum in Opposition to ZIMMER’s Motion for Summary Judgment at 23-24, HOWMEDICA’s Memorandum Supporting Summary Judgment, p. 13). Stem extension" }, { "docid": "23424146", "title": "", "text": "proper claiming. 339 F.3d at 1381. This court’s holding today merely precludes patent protection for the bare compound PHC hemihydrate as claimed in claim 1 of the ’723 patent because the compound is inherently anticipated by the ’196 patent. Miscellaneous Issues SmithKline also appealed the district court’s decision to prevent SmithKline from pursuing its contributory infringement claim. As discussed above, that claim asserted that the ingestion of Apo-tex’s PHC anhydrate tablet by a patient would result in conversion to PHC hemih-ydrate. Again, SmithKline’s allegations of contributory infringement based upon the theory that PHC anhydrate converts into PHC hemihydrate upon ingestion further supports this court’s finding of inherent anticipation. Nevertheless, because claim 1 is invalid for anticipation under § 102(b), SmithKline’s appeal on contributory infringement is moot. Similarly, SmithKline’s appeal of the district court’s ruling that injunctive relief under 35 U.S.C. § 271(e)(4) is within the district court’s discretion is also moot. That ruling was not necessary for the district court’s judgment below and is immaterial to the determination of this appeal. This court, therefore, does not address that issue in this opinion. III. In summary, this court reverses the claim construction of the district court and holds that claim 1 of the ’723 patent covers any amount of crystalline paroxetine hydrochloride hemihydrate without further limitation. Based on the factual findings of the district court, this court affirms the district court’s finding that Apotex’s PHC anhydrate product will infringe claim 1 under that broad construction. Notwithstanding that conclusion, this court holds, based on the undisputed facts, that claim 1 of the ’723 patent is invalid for inherent anticipation by the ’196 patent under § 102(a). Apotex is, therefore, not liable for infringing claim 1 of the ’723 patent. This court affirms the district court’s judgment. COSTS Each party shall bear its own costs. AFFIRMED GAJARSA, Circuit Judge, concurring. I join in the judgment of the court, however, I reach the judgment by a different road. I would find that the trial court erred in construing Claim 1 of the ’723 patent. Under the correct construction, SmithKline Beecham (“SKB”) has proven a" }, { "docid": "14585700", "title": "", "text": "to an elongated stem portion (14). Before assembly, the adapter element (16) is separated from the stem portion and is attached to the elongated stem portion by a threaded connection. The base portion (12) is then attached to the connection portion by a second threaded connection rather than by a Morse taper. Howmedica asserts that the Greenwald patent, Patent No. 4,106,128 (“the Green-wald patent”) is prior art and that every element of the claimed invention of the '313 patent is found in that prior art. The Greenwald patent was issued by the United States Patent and Trademark Office on August 15, 1978 and is entitled “Endo-prosthetic Bone Joint.” It was designed primarily to cover prosthetic joints of the type used to replace dysfunctional, non-weight bearing joints, such as the knuckle, wrist, elbow or shoulder. 01/27/03 Howmedica Reply, Exhibit 2E, Greenwald Patent Abstract. The Greenwald patent contains a radial component (10) that includes a radial .intramedullary stem (11) and a radial cup (13). The joint is comprised of a metacarpal component (30), which includes a spherical ball (31), an intramedullary stem (3) and a socket (21). The socket surrounds the ball of the metacarpal component and mates with the inside cup portion of the radial component. On or about June 17, 2002, Zimmer filed a patent infringement lawsuit against Howmedica, alleging that the accused products infringed claim 1 of the '313 pat ent along with claims 2-4, 6, 8, 13, 14 and 17, all of which are dependent upon claim 1. On October 16, 2002, Howmedica moved for summary judgment of noninfringement or, in the alternative, invalidity of the '313 patent. Then, on January 6, 2003, Zimmer filed a cross motion for summary judgment of infringement. In April 2003, this Court granted Howmedica’s Motion for Summary Judgment of Noninfringement and denied Zim-mer’s Motion for Summary Judgment of Infringement. On May 26, 2004, the Federal Circuit overturned the judgment of noninfringement and remanded the case back to this Court for further proceedings consistent with its opinion. In its opinion, the Federal Circuit construed certain claim terms but declined to construe other claim" }, { "docid": "8771383", "title": "", "text": "infringement and that judgment of noninfringement is warranted as a matter of law. Therefore, I will grant Business Objects’s Motion for Summary 'Judgment as to noninfringement of the asserted claims of the ’033 patent and deny Micros-trategy’s Motion as to infringement of that patent. 2. Invalidity Business Objects also seeks summary judgment of invalidity of the asserted claims of the ’033 patent. (D.I.101.) Since Business Objects has failed to show that there is no genuine issue of material fact on invalidity, I will deny the motion. Business Objects argues that the “Crystal Info 6” product and manuals are prior art under 35 U.S.C. § 102(b), and that they disclose all the elements of the asserted claims. (D.I. 102 at 28-37.) However, that argument is based entirely on the assertion that the Crystal Info 6 product performs the claimed functions “in the same way as the accused products,” so that, if the ’033 patent claims are construed to cover the accused products, then they must also be anticipated by Crystal Info 6. {Id. at 30.) The analysis of each claim element is prefaced by the statement that the elements are disclosed in Crystal Info 6, “if the claims are construed to cover the [accused devices].” {Id. at 31.) Thus, Business Objects’s anticipation argument depends on a finding of infringement. Because I have concluded that the ’033 patent is not infringed, and because no independent argument for anticipation has been advanced, Business Objects has not shown by clear and convincing evidence that no genuine issue of material fact exists as to the issue of invalidity. Therefore, I will deny Business Objects’s Motion for Summary Judgment as to invalidity of the asserted claims of the ’033 patent. C. Summary Judgment on ’796 Patent Invalidity Business Objects seeks summary judgment of invalidity of the asserted claims of the ’796 patent. (D.I.116.) Because Business Objects has presented clear and convincing evidence of anticipation under 35 U.S.C. § 102(b), and Microstrategy has failed to answer with any evidence, I will grant that motion. I will therefore also deny as moot Business Objects’s motion as to noninfringement" }, { "docid": "14585701", "title": "", "text": "ball (31), an intramedullary stem (3) and a socket (21). The socket surrounds the ball of the metacarpal component and mates with the inside cup portion of the radial component. On or about June 17, 2002, Zimmer filed a patent infringement lawsuit against Howmedica, alleging that the accused products infringed claim 1 of the '313 pat ent along with claims 2-4, 6, 8, 13, 14 and 17, all of which are dependent upon claim 1. On October 16, 2002, Howmedica moved for summary judgment of noninfringement or, in the alternative, invalidity of the '313 patent. Then, on January 6, 2003, Zimmer filed a cross motion for summary judgment of infringement. In April 2003, this Court granted Howmedica’s Motion for Summary Judgment of Noninfringement and denied Zim-mer’s Motion for Summary Judgment of Infringement. On May 26, 2004, the Federal Circuit overturned the judgment of noninfringement and remanded the case back to this Court for further proceedings consistent with its opinion. In its opinion, the Federal Circuit construed certain claim terms but declined to construe other claim terms that may have been in dispute at the time of summary judgment. Because the claim construction was incorrect in the first instance, and due to the fact that the Federal Circuit declined to construe all disputed claim terms on appeal, the onus is on this Court to undertake a claim construction of the remaining disputed terms. Those terms already construed by the Federal Circuit are now law of the case. See Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998)(where the court established the construction of all claim terms in dispute, making the prior construction law of the case). III. STANDARD OF REVIEW Summary judgment in favor of those accused of infringement is appropriate where there is no genuine issue of material fact, the trial court has properly construed the claims, and a finding of infringement would be impossible. Lockwood v. American Airlines Inc., 107 F.3d 1565, 1576 (Fed.Cir.1997). During its summary judgment analysis, the court must construe the facts and draw all reasonable inferences in the light most favorable to" }, { "docid": "14585696", "title": "", "text": "June 9, 2005, this Court held oral’ arguments in South Bend, Indiana. Zimmer seeks to have the '313 patent declared valid and enforceable in law and infringed by Howmedica’s products. Contrastingly, Howmedica asserts that claims 1-4, 6, 8, and 13-17 of the '313 patent are invalid under 35 U.S.C. § 102(b) and/or § 103 in view of U.S. .Patent No. 4,106,128 to Greenwald, et al. (“the Greenwald patent”). Recognizing that the Federal Circuit’s Mandate and the findings contained therein are part of the law of this case, it is now the responsibility of this Court to properly construe the claims of the '313 patent and rule on Howmedica’s Renewed Motion for Summary Judgment of Invalidity of Claims 1-4, 6, 8, and 13-17 and Noninfringement of Claims 5, 7, and 9-12 of the '313 patent and Zimmer’s Motion for Partial Summary Judgment on Howmedica’s Defense and Counterclaim that the Greenwald Patent Anticipates or Renders Obvious the Asserted Claims of the '313 patent. I. JURISDICTION Howmedica is a New Jersey corporation with its principal place of business in New Jersey. Complaint ¶2. It is a wholly-owned subsidiary of the Stryker Corporation of Kalamazoo, Michigan, which designs, manufactures, and sells various medical products. Id. Zimmer is a Delaware corporation with its principal place of business in Indiana. Complaint ¶ 1. Zim-mer also designs, manufactures, and sells various medical products and is the assign-ee of the '313 patent. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1338(a), and venue is based on 28 U.S.C. §§ 1391(b) and (c). II. BACKGROUND There is a vast factual record in this case, and this Court, in rendering its decision, has taken careful consideration of all such facts. This Court also takes judicial notice of the record in this case. Zimmer holds the '313. patent, entitled ‘‘Offset Prosthetic Stem Extension.” The application for the '313 patent was filed on November 23, 1992, and the United States Patent and Trademark Office issued Zimmer’s '313 patent on March 1, 2004. The . '313 patent was issued with seventeen (17) 'claims, with Claim 1 as an independent claim" }, { "docid": "3707154", "title": "", "text": "requirement, the '313 patent issued in March 1978. A continuation application was filed for the coating apparatus claims. Locke was deleted as an inventor. The examiner rejected these claims as prima facie obvious. The United States Patent and Trademark Office Board of Patent Appeals and Interferences and the United States Court of Customs and Patent Appeals (CCPA), In re McNeilly, 612 F.2d 585 (C.C.P.A.1979), affirmed the rejections. Finally, after two more continuation applications and the introduction of new evidence to rebut the finding of prima facie obviousness, the ’609 patent issued in January 1985. Gemini requested summary judgment on the invalidity of the four patents in suit in four motions on the following grounds, respectively: (1) the ’609, ’712, and ’496 patents are invalid on the theory of collateral estoppel and res judicata in view of In re McNeilly; (2) the ’313 patent is invalid because of anticipation under 35 U.S.C. § 102(e); (3) inequitable conduct on the part of Applied in prosecuting the applications of these patents; and (4) double patenting. The district court granted the first two motions, the third was not decided, and the fourth was withdrawn. Only the two motions that were granted are at issue in this appeal. Issues 1. Whether the district court erred in holding invalid, under the doctrine of collateral estoppel, the ’609 patent because the CCPA affirmed the rejection of the claims of a parent application and the ’712 and ’496 patents because these patents claim the apparatus used in the process claimed in the ’609 patent. 2. Whether the district court erred in holding the 712 patent as prior art with respect to the ’313 patent and the ’313 patent to be anticipated by the 712 patent under 35 U.S.C. § 102(e). OPINION The ’609 Patent The district court determined that the claims of the ’609 patent were barred by the collateral estoppel effects of In re McNeilly. This conclusion was based on its finding that the new evidence introduced by Applied in its continuation applications did not give rise to any genuine issues of material fact regarding obviousness; therefore," }, { "docid": "15530269", "title": "", "text": "within that time period. Id. at 6-7. On August 20, 2004, the court denied Ormco’s motion for summary judgment of invalidity of claims 1-3, 7, and 8 of the ’611 patent, and claims 1-3, 7, 10-13,17, and 18 of the ’548 patent. On November 4, 2004, the court granted Align’s motion for summary judgment rejecting Ormco’s defense that Align had engaged in inequitable conduct in prosecuting the ’611 or ’548 patents, and granted Align’s motion for summary judgment that claims 1-3, 7, and 8 of the ’611 patent, and claims 1-3, 7, 10-13, 17, and 18 of the ’548 patent were not invalid. The court reopened discovery in response to Ormco’s assertion that it had new evidence of invalidity based on the prior orthodontic practices of Dr. Truax and Dr. Rains. On February 24, 2005, the district court ruled on cross motions for summary judgment that claim 1 of the ’611 patent was not invalid in view of the Truax and Rains references, and that claims 2, 3, 7, and 8 were not anticipated and would not have been obvious because they were dependent on a valid claim. Although the court held that claims 1-3 and 11-13 of the ’548 patent were invalid because they were anticipated by the Rains reference, it held that claims 10 and 17 of the ’548 patent were not invalid because they were not anticipated and would not have been rendered obvious by the Rains and Truax references. On March 26, 2006, the court entered a permanent injunction enjoining Ormco from infringing claims 1-3 and 7 of the ’611 patent and claims 10 and 17 of the ’548 patent. While the court has not yet entered a final judgment, we have jurisdiction over the appeal from the permanent injunction pursuant to 28 U.S.C. § 1295(a)(1) (2000). DISCUSSION Ormco contends that claims 1-3 and 7 of the ’611 patent and claims 10 and 17 of the ’548 patent are invalid because they would have been obvious or are anticipated under 35 U.S.C. §§ 102(a) (2000) and 103(a). Align does not challenge the district court’s determination that" }, { "docid": "2777613", "title": "", "text": "and ECRM filed a motion for summary judgment, in which they argued that, in view of the omission of the Program Printout Appendix, claims 1 and 11 of the ’257 patent were invalid because the ’257 patent’s specification failed to meet the best mode and enablement requirements of 35 U.S.C. § 112, ¶ 1. They further argued that claims 1 and 11 of the ’257 patent and claim 10 of the ’443 patent were invalid due to anticipation and obviousness under 35 U.S.C. §§ 102 and 103. Southwest promptly requested that the Patent and Trademark Office (“PTO”) issue a certificate of correction for the ’257 patent under 35 U.S.C. § 254. In due course, the PTO issued a certificate of correction adding the Program Printout Appendix to the ’257 patent. Harlequin and ECRM next moved for summary judgment that the certificate of correction was invalid and that, without the Program Printout Appendix as part of the ’257 patent, claims 1 and 11 were invalid, again, by reason of the specification’s failure to satisfy the enablement and best mode requirements of 35 U.S.C. § 112, ¶ 1. Alternatively, they argued that, even if the certificate of correction was validly issued, it is not effective in this suit. Finally, Harlequin and ECRM asserted, as they had before, that apart from the matter of the certificate of correction, claims 1 and 11 of the ’257 patent and claim 10 of the ’443 patent were invalid because prior art either anticipated them under 35 U.S.C. § 102 or rendered them obvious under 35 U.S.C. § 103. On June 19, 1998, the district court denied Harlequin’s and E CRM’s motion without prejudice to their refiling it as a motion for JMOL at trial. On August 17, 1998, a jury trial was held. In addition to denying infringement of claims 1 and 11 of the ’257 patent, Harlequin and ECRM asserted that claims 1 and 11 were invalid due to anticipation, obviousness, lack of enablement, lack of definiteness, lack of an adequate written description, failure to disclose the best mode of practicing the invention, and lack" }, { "docid": "15480690", "title": "", "text": "concluded that the ’722 patent is invalid under § 112 and § 102(d), it is unnecessary to determine whether, in the light of the facts as to which there can be no issue, the ’722 patent is also invalid under § 102(b), as patented or described in a printed publication more than one year pri- or to the date of the United States application. Similarly, it is unnecessary to determine whether, on the basis of the same facts, the ’722 patent is invalid as obvious under § 103. I. Invalidity of the '722 Patent by Reason of Prior Sale In Part V C of this opinion I have set forth the factual data upon which Nestle urges and Struthers resists summary judgment on the ground of prior sale or offer of sale under 35 U.S.C. § 102(b). I have decided not to rule on this contention for two reasons. First, it is unnecessary since I have already concluded that the ’722 patent is invalid on two other grounds. Second, the ’722 patent is so unclear, and the various Struthers assertions as to what, in fact, is the claimed invention are so diverse, it would be an unduly cumbersome exercise to match it all against what was offered and/or sold to General Foods. J. Conclusion For the reasons set forth above, Nestle’s motion for summary judgment of invalidity of the Howell ’126 patent will be granted on the ground that it is obvious over the prior art, and Nestle’s motion for summary judgment of invalidity of the Ganiaris ’722 patent will be granted on the grounds that it fails to meet the requirements of 35 U.S.C. § 112 and that by reason of Canadian patent 811, 389 it is invalid under 35 U.S.C. § 102(d). Counsel for Nestle are requested to prepare a form of order which will implement the conclusions set forth in this opinion and the various determinations which I made from the bench at the four hearings on these motions. The order shall not contain detailed recitals of the factual or legal contentions of the parties. It shall" }, { "docid": "1372276", "title": "", "text": "§ 102(b), the invention claimed under patent ’776 was on sale, sold or put in public use at least one year prior to the effective filing date of the patent. (2) Under 35 U.S.C. § 102(e), co-inventor Perry’s individual work in patent 3,278,298 was invalidating prior art. (3) Under 35 U.S.C. §§ 102, 103, patent ’776 claims the same alloys claimed under Goller patent 2,505,762 filed 20 years earlier. (4) Deficiencies in the ’776 patent application proceedings before the Patent Office rendered the patent invalid. The district court considered only the first question and granted Cyclop’s motion for summary judgment. Concluding that no genuine issue of material fact existed, the court held that the invention as claimed in the ’776 patent was on sale or in public use one year prior to the effective filing dates of the patent. Because a finding of on sale or in public use was sufficient to render the patent invalid, the court held it unnecessary to consider the remaining grounds for invalidity. Before the district court, Cyclops argued that the stainless steel alloy claimed under patent ’776 was sampled and sold to various aircraft manufacturers during the late 1950’s and early 1960’s in an attempt by Armco to obtain commercial orders for the alloy for use in the development of the B-70 bomber and SST Transport. Cyclops also asserted that any experimentation that occurred was solely on the part of the aircraft manufacturers to determine which alloys best suited their purposes. In response, Armco argued that submission of the samples to the aircraft manufacturers was merely for experimental purposes to obtain further data on the properties of the alloy to aid in perfecting it. The only question we decide today is whether summary judgment was properly granted to Cyclops or whether there were disputed issues of material fact calling for a trial. III. It goes without saying that summary judgment is properly granted only where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The moving party bears the burden of" }, { "docid": "14585739", "title": "", "text": "material facts that would preclude a grant of summary judgment. Hilgraeve Corp. v. McAfee Assocs., 224 F.3d 1349, 1352-54 (Fed.Cir.2000). At the time of the briefing of the motion for summary judgment, Howmedica was relying on a partial claim construction. In order to properly adjudicate summary judgment in this matter, and in light of the present Marhman determination, the appropriate remedy is to deny the current motions for summary judgment and permit the filing of new summary judgment motions. IV. CONCLUSION The present motions for summary judgment were based upon an undefined claim construction, and the parties used conflicting constructions in their respective briefs. Therefore, Howmedica’s Renewed Motion for Summary Judgment of Invalidity of Claims 1-4, 6, 8, and 13-17 and Nonin-fringement of Claims 5, 7, and 9-12 of the '313 patent is DENIED, and Zimmer’s Motion for Partial Summary Judgment on Howmedica’s Defense and Counterclaim that the Greenwald Patent Anticipates or Renders Obvious the Asserted Claims of the '313 patent is also DENIED. At this time and in light of this complete, defined claim construction, the parties should present any summary judgment issues in accordance with this order. The parties need not and should not revisit the issue of claim construction, as this Court will not revisit it. The only issues remaining are those concerning summary judgment. Motions for summary judgment must be filed with this Court no later than Tuesday, January 3, 2006. IT IS SO ORDERED. . Additionally, the Federal Circuit made it clear that the \"mere fact that the stem mounting means and the elongated stem portion may have been two separate pieces before they were attached to form the stem extension does not take the stem extension outside the scope of claim 1.” Fed. Cir. Op. at 9. Further, the Federal Circuit stated that the distinction between the '313 patent and Lazzeri is the offset between the axes, not whether the stem extension includes one or more pieces. Id. . This definition was also included in the list cited by Zimmer in Exhibit 2 on page 1180, which was attached to Zimmer's 4/6/05 Opposition Brief." }, { "docid": "8771384", "title": "", "text": "analysis of each claim element is prefaced by the statement that the elements are disclosed in Crystal Info 6, “if the claims are construed to cover the [accused devices].” {Id. at 31.) Thus, Business Objects’s anticipation argument depends on a finding of infringement. Because I have concluded that the ’033 patent is not infringed, and because no independent argument for anticipation has been advanced, Business Objects has not shown by clear and convincing evidence that no genuine issue of material fact exists as to the issue of invalidity. Therefore, I will deny Business Objects’s Motion for Summary Judgment as to invalidity of the asserted claims of the ’033 patent. C. Summary Judgment on ’796 Patent Invalidity Business Objects seeks summary judgment of invalidity of the asserted claims of the ’796 patent. (D.I.116.) Because Business Objects has presented clear and convincing evidence of anticipation under 35 U.S.C. § 102(b), and Microstrategy has failed to answer with any evidence, I will grant that motion. I will therefore also deny as moot Business Objects’s motion as to noninfringement (D.I. 116) and deny Microstrategy’s motion for summary judgment of infringement (D.I. 124) of the ’796 patent. Business Objects has shown that the “Crystal Info 6” product and manuals were in public use and on sale more than one year prior to the ’796 patent application date of March 23, 1999 (D.I. 121 at ¶ 6 & Ex. 6-10), and that they disclose all the elements of the asserted claims (D.I. 118 at ¶¶ 6-16; D.I. 119, Ex. 2, App. G at 1-14; id. at Ex. 5-10). Microstrategy responds with three arguments. First, Microstrategy argues that the Crystal Info 6 product may not perform as described in the manuals. (D.I. 183 at 12- 13,19.) Microstrategy does not argue that the manuals are not an enabling disclosure, but rather that differences may exist between that disclosure and the performance of the software itself. (Id.) That argument fails to address the fact that the manuals are themselves prior art and provide clear and convincing evidence sufficient to support a conclusion of invalidity. Second, Microstrategy attacks the credibility" }, { "docid": "17699901", "title": "", "text": "to be believed, and all justifiable inferences are to be drawn in the nonmovant’s favor. Id. 477 U.S. at 255. If the non-moving party’s evidence is merely color-able or is not significantly probative, then summary judgment may be granted. Id. at 249-250. 2. Summary judgment in the patent invalidity context Patents are presumed valid. 35 U.S.C. § 282 (1988). The presumption of validity afforded by § 282 places the burdens of going forward and of persuasion on the party asserting invalidity. The party asserting invalidity must establish, by clear and convincing evidence, facts which support the ultimate legal conclusion of invalidity. Checkpoint Systems v. U.S. Intern. Trade Com’n, 54 F.3d 756 (Fed.Cir.1995). When supported by the facts and law, summary judgment is appropriate in patent cases. See, e.g., Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831 (Fed.Cir.1984). For example, a district court can properly grant a motion for summary judgment on patent invalidity when the factual inquiries into obviousness present no genuine issue of material fact. Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714 (Fed.Cir. 1991). The production of evidence of prior art not considered by the Patent and Trademark Office may carry more weight as the district court is not called upon to disagree with the PTO or required to defer to it as to the effect of that evidence upon the validity of the patent. American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1369-60 (Fed.Cir.1984). B. View’s Anticipation Arguments View argues that the ’152 patent is invalid because View’s 1990-91 activities anticipate claims 1, 3, and 12, in violation of 35 U.S.C. § 102. Specifically, View argues that patent T52 was “invented by another who did not abandon, suppress, or conceal it,” in violation of § 102(g); was “known or used by others,” invalidating it under § 102(a); and was “on sale” one year before the patent application, and thus invalid under § 102(b). (View also argues that the ’152 patent is obvious, in violation of 35 U.S.C. § 103, discussed infra at III.C.) View’s first three arguments are all" }, { "docid": "14585737", "title": "", "text": "that “positionable” should be construed as “capable of orienting the stem in a plurality of radial orientations.” Thus, according to Howmedica, “selectively positionable” requires only “that the stem be capable of being positioned or arranged in any desired orientation. ” Id. at 22. Howmedica’s construction of this claim term is correct and, as such, adopted by this Court. As discussed in relation to claims 1 and 3, this Court is not of the view that mounting requires fixing or fastening without movement relative to each other. Rather, in this context, selectively positionable refers to being put in position for use. Here, we are dealing with a component that must be positioned or arranged in any variety of orientations prior to insertion into the bone. Thus, for the same reasons employed in the analysis above, this Court adopts Homedica’s proposed construction of “selectively positionable”, which requires “that the stem be capable of being positioned or arranged in any desired orientation.” B. Summary Judgment. Motions It is necessary at this time to discuss the pending motions for summary judgment, which include Howmedica’s Renewed Motion for Summary Judgment of Invalidity of Claims 1-4, 6, 8, and 13-17 and Nonin-fringement of Claims 5, 7, and 9-12 of the '313 patent and Zimmer’s Motion for Partial Summary Judgment on Howmedica’s Defense and Counterclaim that the Green-wald Patent Anticipates or Renders Obvious the Asserted Claims of the '313 patent. In its brief, Howmedica asserted that the Federal Circuit had, in fact, completed a full claim construction by construing three main claim terms. As such, Howmedica relied solely on those claim constructions in briefing its summary judgment motion and in responding to Zimmer’s motions. The reverse applies to Zimmer. The summary judgment standard in patent cases when determining infringement is a two-step process. First the court determines the scope and meaning of the asserted claim. Then, the court compares the properly construed claims with the accused device or product to reach a finding regarding infringement. Johnson Worldwide, 175 F.3d at 988. In the context of summary judgment, this Court reviews the second determination for genuine disputes of" }, { "docid": "6736285", "title": "", "text": "(“the '654 patent”), issued to McGough, it did not present evidence or argument of how the prior art suggested the additional limitations present in those dependent claims. All claims are “presumed valid independently of the validity of the other claims.” 35 U.S.C. § 282. Because dependent claims contain additional limitations, they cannot be presumed to be invalid as obvious just because the independent claims from which they depend have properly been so found. Thus, since Resco offered insufficient evidence to support its argument that claims 2, 4-18, and 20-21 are invalid as a matter of law, the district court erred in holding those claims invalid on summary judgment. Thus, we must reverse that portion of the district court’s decision, and remand for a redetermination of obviousness after trial. E. Infringement of the '057 Patent Sandt only asserted that Resco infringed claims 1, 3, and 19 of the '057 patent. Because the district court determined that those claims were invalid, it held that it need not decide infringement. In Cardinal Chemical Co. v. Morton International, Inc., 508 U.S. 83, 96, 113 S.Ct. 1967, 124 L.Ed.2d 1 (1993), the Supreme Court held that the issue of validity is not mooted when a finding of noninfringement is made or affirmed. This case is the exact opposite. Here, the district court determined that the claims (claims 1, 3, and 19) asserted to be infringing were invalid; thus it was not necessary for it to determine whether Resco infringed those claims; even if it did infringe, the claims were not valid so no judgment of liability could be entered. See B.F. Goodrich Co. v. Aircraft Braking Sys., Corp., 72 F.3d 1577, 1583, 37 USPQ2d 1314, 1319 (Fed.Cir.1996) (“Because we hold that [the] claims ... are invalid as ... obvious ... we need not reach the issues relating to ... infringement.”). Conclusion We affirm the district court’s summary judgment holding that claim 1 was anticipated under § 102(g)(2), and that the inventions of claims 3 and 19 would have been obvious as a matter of law in light of the prior art. We also affirm the" }, { "docid": "3728499", "title": "", "text": "specified, the court shall refer only to Hayes Inc. when the matter at issue pertains equally to Dennis Hayes in his individual capacity and to Hayes Inc. . Multi-Tech filed its unfair competition claim on December 12, 1990. It amended the complaint on June 13, 1991. On June 24, 1991, the court consolidated the patent case and the unfair competition case. . Modem manufacturers established the MPDG in response to Hayes Inc.'s letters requesting that modem manufacturers take a license under the '302 patent. The manufacturers believed that the formation of the MPDG would facilitate the sharing of advice and resources in their attempts to obtain a judgment that the '302 patent was invalid and unenforceable. . Hayes Inc. contends that anticipation under § 102(a) is not before the court because MultiTech did not indicate in discovery that it intended to argue that the ’302 patent is invalid under § 102(a). The court disagrees. Hayes Inc. cannot use Multi-Tech’s responses to interrogatories served early in the discovery process of this case to limit the issues before the court. Hayes Inc.’s patent expert’s analysis of patent validity under § 102(a) and its arguments in its memoranda of law regarding anticipation under § 102(a) demonstrate that it apparently was well aware of Multi-Tech’s argument under § 102(a). The court thus concludes that Hayes Inc. is not prejudiced by the court's consideration of Multi-Tech’s argument under § 102(a) and that the court will consider Multi-Tech’s argument under § 102(a). Hayes Inc. makes similar arguments under subsections (d), (e), (f) and (g) of § 102 and moves for summary judgment on those provisions. Multi-Tech it is not asserting defenses under §§ 102(c), (d), (e) and (f). Therefore, the court finds that a ruling on §§ 102(c), (d), (e) and (f) is unnecessary. Multi-Tech contends that it is asserting a defense under § 102(g) and that it is entitled to summary judgment on that provision. Beyond that assertion, however, Multi-Tech did not provide any discussion of patent validity under § 102(g). Despite MultiTech’s failure to provide any discussion on § 102(g), the court denies Hayes" }, { "docid": "14585738", "title": "", "text": "summary judgment, which include Howmedica’s Renewed Motion for Summary Judgment of Invalidity of Claims 1-4, 6, 8, and 13-17 and Nonin-fringement of Claims 5, 7, and 9-12 of the '313 patent and Zimmer’s Motion for Partial Summary Judgment on Howmedica’s Defense and Counterclaim that the Green-wald Patent Anticipates or Renders Obvious the Asserted Claims of the '313 patent. In its brief, Howmedica asserted that the Federal Circuit had, in fact, completed a full claim construction by construing three main claim terms. As such, Howmedica relied solely on those claim constructions in briefing its summary judgment motion and in responding to Zimmer’s motions. The reverse applies to Zimmer. The summary judgment standard in patent cases when determining infringement is a two-step process. First the court determines the scope and meaning of the asserted claim. Then, the court compares the properly construed claims with the accused device or product to reach a finding regarding infringement. Johnson Worldwide, 175 F.3d at 988. In the context of summary judgment, this Court reviews the second determination for genuine disputes of material facts that would preclude a grant of summary judgment. Hilgraeve Corp. v. McAfee Assocs., 224 F.3d 1349, 1352-54 (Fed.Cir.2000). At the time of the briefing of the motion for summary judgment, Howmedica was relying on a partial claim construction. In order to properly adjudicate summary judgment in this matter, and in light of the present Marhman determination, the appropriate remedy is to deny the current motions for summary judgment and permit the filing of new summary judgment motions. IV. CONCLUSION The present motions for summary judgment were based upon an undefined claim construction, and the parties used conflicting constructions in their respective briefs. Therefore, Howmedica’s Renewed Motion for Summary Judgment of Invalidity of Claims 1-4, 6, 8, and 13-17 and Nonin-fringement of Claims 5, 7, and 9-12 of the '313 patent is DENIED, and Zimmer’s Motion for Partial Summary Judgment on Howmedica’s Defense and Counterclaim that the Greenwald Patent Anticipates or Renders Obvious the Asserted Claims of the '313 patent is also DENIED. At this time and in light of this complete, defined claim" }, { "docid": "14585695", "title": "", "text": "for Summary Judgment of Noninfringement. Zimmer, Inc. v. Howmedica Osteonics Corp., 258 F.Supp.2d 874 (N.D.Ind.2003). Zimmer appealed this Court’s decision, and on May 26, 2004, the United States Court of Appeals for the Federal Circuit reversed and remanded the case to this Court for further proceedings in accordance with its opinion. .In its opinion, the Federal Circuit construed certain claim terms but declined to construe other claim terms that may have been in dispute at the time of summary judgment. The Federal Circuit also stated that it was not appropriate for it, on appeal, to determine whether the claims of the '313 patent are infringed by Howmedi-ca’s Duracon Total Stabilizer Revision System (“the infringing Duracon system”) and the Scorpio Single Axis Total Knee System (“the infringing Scorpio system”)(collectively, “the accused products”). Rather, the Federal Circuit simply found that there existed genuine issues of material fact sufficient to preclude a grant of summary judgment of noninfringement. Since that time, the record in this case has grown substantially. The parties have renewed their respective motions, and on June 9, 2005, this Court held oral’ arguments in South Bend, Indiana. Zimmer seeks to have the '313 patent declared valid and enforceable in law and infringed by Howmedica’s products. Contrastingly, Howmedica asserts that claims 1-4, 6, 8, and 13-17 of the '313 patent are invalid under 35 U.S.C. § 102(b) and/or § 103 in view of U.S. .Patent No. 4,106,128 to Greenwald, et al. (“the Greenwald patent”). Recognizing that the Federal Circuit’s Mandate and the findings contained therein are part of the law of this case, it is now the responsibility of this Court to properly construe the claims of the '313 patent and rule on Howmedica’s Renewed Motion for Summary Judgment of Invalidity of Claims 1-4, 6, 8, and 13-17 and Noninfringement of Claims 5, 7, and 9-12 of the '313 patent and Zimmer’s Motion for Partial Summary Judgment on Howmedica’s Defense and Counterclaim that the Greenwald Patent Anticipates or Renders Obvious the Asserted Claims of the '313 patent. I. JURISDICTION Howmedica is a New Jersey corporation with its principal place of business" }, { "docid": "8771388", "title": "", "text": "even under Micros-trategy’s proposed construction. For the other two terms, Microstrategy does not argue based on its proposed claim construction. (D.I. 183 at 19.) In the face of evidence that those elements are found in the Crystal Info 6 manuals (D.I. 119, Ex. 2, App. G at 9-10, 13-14) and product (D.I. 118 at ¶¶ 12, 15), Microstrategy simply argues its doubts about whether or how features in the manual were implemented in the product. (D.I. 183 at 19.) That response is not sufficient to raise a genuine issue of material fact. Therefore, I will grant Business Objects’s Motion for Summary Judgment as to invalidity of the asserted claims of the ’796 patent. Because I conclude that the claims are invalid, I do not reach the issue of infringement. D. Summary Judgment on %32 Patent Invalidity Business Objects seeks summary judgment of invalidity of the asserted claims of the ’432 patent. (D.I.109.) Because Business Objects has presented clear and convincing evidence of anticipation under 35 U.S.C. § 102(b) of claims 1, 2, 4, and 5, and because I have determined that claims 6, 9, 10, and 13 are indefinite, I will grant that motion. I will therefore also deny as moot Business Objects’s motion as to noninfringement (D.I.109) and deny Microstrategy’s motion for summary judgment of infringement (D.I.124) of the ’432 patent. 1. Claims 1, 2, k, and 5 are Anticipated Business Objects has presented evidence that the “Actuate e.Reporting Suite 4” product and manuals were in public use and on sale more than one year prior to the ’432 patent application date of June 20, 2001 (D.I. 114, Ex. 4 at 39:24-44:21, Ex. 7 at 14:9-15:16, 22:7-22) and that they disclose all the elements of claims 1, 2, 4, and 5. (D.I. Ill at ¶¶ 12-20; D.I. 114, Ex. 4 at 24:8-25:10, 29:19-32:6, 72:5-73:10, 75:9-77:6, 83:5-11, 87:14-89:15, 91:9-92:25, 98:1-104:4, 105:20-108:1, 118:10-126:14 & Ex. 2171.) Microstrategy responds with four arguments. First, as it did for the ’796 patent, supra Section IV.C, Microstrategy argues that the manuals are not sufficient to show how the product operated. (D.I. 188 at 31-32.) Again," } ]

[ { "docid": "16313197", "title": "", "text": "district court held that the bankruptcy court had no jurisdiction over Saylors’ home. We disagree. The jurisdiction of the bankruptcy court derives from that of the district court, see 28 U.S.C. § 157(a) — (b)(1), which has exclusive jurisdiction over “all of the property, wherever located, of the debtor as of the commencement of [the] case, and of property of the estate.” Id. § 1334(d). With certain exceptions not applicable here, the property of the debtor’s estate is comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The district court concluded that the bankruptcy court lacked jurisdiction by reasoning as follows: Saylors had no true “possessory” or “equitable” interest in his residence at the time his Chapter 13 petition was confirmed on January 26, 1988. Any and all interest by Saylors, except his Alabama statutory right to redeem after foreclosure, ceased to exist upon the granting of Jim Walter’s right to foreclose on December 29,1987. And, if any “posses-sory interest” did remain, it surely disappeared on January 6, 1988, when the Chapter 7 trustee formally abandoned the property____ Whatever “possession” of the residence Saylors had on January 6,1988, was held constructively by his trustee, and upon abandonment, evaporated. (emphasis in original). Contrary to the district court’s conclusion Saylors still had an equitable interest in his home on January 26, 1988 that was subject to the bankruptcy court’s jurisdiction. The lifting of the automatic stay only gave Jim Walter the right to foreclose; because no foreclosure sale had taken place by January 26, 1988, Saylors still had his equitable right of redemption on that date. Although Jim Walter was prevented from foreclosing by the filing of the chapter 13 petition on December 30, 1987, see 11 U.S. C. § 362(a)(5), Saylors would have had the statutory right of redemption even if a foreclosure sale had taken place. Either of these property rights is sufficient to give the bankruptcy court jurisdiction over a debtor’s home. The Alabama statutory right of redemption is a property right of the debtor" } ]

[ { "docid": "17226263", "title": "", "text": "per se nor in the specific quotas they had in 1983 or any other price year.”), and even the holdings of individual courts are muddled, seeming to come down on both sides of the issue, see, e.g., In re Jackson, 169 B.R. 742, 749 n. 2 (N.D.Fla.1994) (“[C]ourts have stated that an allotment is a type of intangible personal property .... However, allotments cannot be considered as ordinary intangible property in isolation from the statutes and regulations which control their transfer.”). Nonetheless, to the extent that the government’s argument relies on the notion that quotas are not transferable, we must disagree. Despite their apparent ambivalence about whether or not quotas are property, courts across the peanut growing states have held consistently that quotas are transferable, subject to statutory restrictions. See, e.g., Smith v. Smith, 656 So.2d 814 (Ala.App.1994) (holding transferable in divorce); McKim, 424 S.E.2d at 12-13 (recognizing transferable through sale); In re Williams, 136 B.R. 311 (M.D.Fla.1992) (holding transferable in bankruptcy). In this case, the transferability of the quotas supports the conclusion that the quotas constitute property. 2. Excludability The Supreme Court has recently recognized that the right to exclude is “perhaps the most fundamental of all property interests.” Lingle v. Chevron U.S.A., Inc., - U.S. -, -, 125 S.Ct. 2074, 2082, 161 L.Ed.2d 876 (2005). The Members contend that they have an exclusive interest in their respective peanut quota allotments. They argue that cases such as American Pelagic, Conti, and Mitchell Arms are distinguishable on the ground that the licenses awarded to the various citizens in those cases were not exclusive, whereas the peanut quota allotments awarded here were exclusive. Conversely, the government argues that, at most, peanut quota holders under the 1996 FAIR Act have the power to exclude others from taking advantage of their allotment and that this limited power of exclusion is no different from a fisherman’s ability to exclude others from using his fishing license. The government contends that it is still the sole arbiter of who has access to the peanut quota allotments in much the same way as it determines who shall" }, { "docid": "17226262", "title": "", "text": "property such that a failure to convey a quota under a contract constitutes breach). The government argues that these eases do not stand for the proposition that quotas are compensable property interests, but only illustrate that, in some circumstances, quotas are treated like property. The Members counter that the treatment of quotas as property im plies that they are property for all intents and purposes. The cases addressing the issue of whether an agricultural allotment is property are less than straightforward in their conclusions; courts have arrived at different conclusions, compare Walker v. Miller, 507 S.W.2d 606, 609 (Tex.App.1974) (“An allotment under the [AAA] has been recognized as intangible personal property, subject to devise, inheritance, transfers and sales, division by a district court in divorce proceedings, and to treatment as property in bankruptcy proceedings. It is recognized that an allotment has a market value, and the statutory restrictions on transfer to not negate the possibility of transfer.”) with Callaway v. Block, 763 F.2d 1283, 1290 (11th Cir.1985) (“Appellants have no protected property interest in quotas per se nor in the specific quotas they had in 1983 or any other price year.”), and even the holdings of individual courts are muddled, seeming to come down on both sides of the issue, see, e.g., In re Jackson, 169 B.R. 742, 749 n. 2 (N.D.Fla.1994) (“[C]ourts have stated that an allotment is a type of intangible personal property .... However, allotments cannot be considered as ordinary intangible property in isolation from the statutes and regulations which control their transfer.”). Nonetheless, to the extent that the government’s argument relies on the notion that quotas are not transferable, we must disagree. Despite their apparent ambivalence about whether or not quotas are property, courts across the peanut growing states have held consistently that quotas are transferable, subject to statutory restrictions. See, e.g., Smith v. Smith, 656 So.2d 814 (Ala.App.1994) (holding transferable in divorce); McKim, 424 S.E.2d at 12-13 (recognizing transferable through sale); In re Williams, 136 B.R. 311 (M.D.Fla.1992) (holding transferable in bankruptcy). In this case, the transferability of the quotas supports the conclusion that the" }, { "docid": "17226248", "title": "", "text": "Act also amended the AAA to specifically protect transferors from a subsequent reduction of their quotas: “Any farm poundage quota transferred under this paragraph shall not result in any reduction in the farm poundage quota for the transferring farm if the transferred quota is produced or considered produced on the receiving farm.” 1996 FAIR Act, § 155(i)(6)(D). In 2002, Congress amended the peanut quota program by repealing the marketing quota program, establishing a “buyout” of quota holders, and creating a new price support program. The buyout provision authorized a one-time payment to quota holders of $0.55 per pound, which equated to a payment of $0.11 per pound for five years. 2002 Act, § 1309(b)(1). To have been eligible for the new quota, one must have been a “producer on a farm in the United States that produced or was prevented from planting peanuts during any or all of the 1998 through 2001 crop years.” 2002 Act, § 1301(5). Thus, the new quota was available to “an owner, operator, landlord, tenant, or sharecropper that shares in the risk of producing a crop on a farm and is entitled to share in the crop available for marketing from the farm.” 2002 Act, § 1301(8). This defini tion of producer marks a distinct departure from the definition used in previous statutes, including the 1996 Act, because it excludes from consideration farmers who leased or transferred their quotas to other producers. 7 C.F.R. § 729.214(m) (2003). Prior to the 2002 Act, farmers were considered producers even if they had leased their quotas and, as a consequence, could have a quota even if they did not share in the risk of producing a crop. B. The Proceedings Before the Court of Federal Claims The trial court determined that the primary issue before it was whether the 1996 FAIR Act created a property interest vested in a peanut quota holder that was eliminated by the 2002 Act. The Members asserted a regulatory taking of their alleged property right in the peanut quota created by the 1996 FAIR Act. They argued (1) that the 2002 Act rendered" }, { "docid": "11420006", "title": "", "text": "conveying her one-half interest in the Real Property, nor was the Final Decree recorded with the Register of Deeds for Roane County, Tennessee. The Trustee argues that because the Debtor did not execute a quit claim deed transferring her interest in the Real Property, and because neither party recorded the Final Decree with the Register of Deeds for Roane County, Tennessee, the Debtor still owned her one-half interest in the Real Property at the time her bankruptcy case was commenced. Alternatively, the Trustee avers that any interest the Defendant may arguably have acquired in the Real Property under the Final Decree is subject to avoidance by her under § 544 of the Bankruptcy Code. The Debtor’s bankruptcy estate consists of “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C.A. § 541(a)(1) (West 1993). Additionally, the Debtor is required to turnover all property of the estate to the Trustee pursuant to 11 U.S.C.A. § 542 (West 1993). The Trustee, who became the representative of the bankruptcy estate, succeeded to all of the Debtor’s interests in property of the estate and inherited the responsibility to use estate property in the best interests of creditors, including the sale thereof. See 11 U.S.C.A. § 323(a) (West 1993); 11 U.S.C.A. § 704(1) (West 1993). To accomplish her duties, the Trustee has been granted several powers by the Bankruptcy Code, including those found in § 544, also known as the “strong-arm provision,” which provides as follows: (a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by— (1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a" }, { "docid": "23607915", "title": "", "text": "adopted. Id. The Secretary also concluded that a continuation of the 1982-1983 across-the-board approach “would clearly be inequitable to quota holders in ‘Category 4' ” because “under the priorities set forth [in the 1981 Act] quota holders in ‘Category 4’ were in the most protected category____” Id. Category III farmers were never given personal notice that the category-by-category approach would be implemented in 1984 and 1985. However, the Secretary indicated in the 1982 and 1983 regulations that the across-the-board approach applied for those years only. B. District Court Proceedings Appellants, who are all category III farmers, faced drastic reductions in or elimination of their quota allotments under the 1984 regulations. They filed suit in the United States District Court for the Southern District of Georgia against the United States, the Department of Agriculture and various federal officials. They claimed that (1) the Secretary abused his discretion in promulgating the 1984 regulations because the regulations conflict with the 1981 Act; and (2) under the 1984 regulations, their peanut quota allotments would be taken without due process of law in violation of the fifth amendment. They asked the district court to set aside the 1984 regulations, and enjoin the Secretary from making any reductions in peanut quota allotments until a “fair and equitable” method for implementing the regulations could be devised and until the Secretary provided personal notice of the planned reductions. Appellants moved for a temporary restraining order barring implementation of the 1984 regulations or any other regulations that would “reduce the peanut quota allotments in a manner which is void for conflict with the statute.” Record at 85. The district court treated the motion as one for a preliminary injunction, and held a hearing on the motion. He denied the request, holding that plaintiffs were not likely to succeed on the merits because (1) the Secretary did not abuse his discretion; and (2) there is no due process violation since plaintiffs do not have a protected property interest in the peanut quota allotments and, even if they did, publication of the regulations in the Federal Register provided adequate notice to" }, { "docid": "23607916", "title": "", "text": "of law in violation of the fifth amendment. They asked the district court to set aside the 1984 regulations, and enjoin the Secretary from making any reductions in peanut quota allotments until a “fair and equitable” method for implementing the regulations could be devised and until the Secretary provided personal notice of the planned reductions. Appellants moved for a temporary restraining order barring implementation of the 1984 regulations or any other regulations that would “reduce the peanut quota allotments in a manner which is void for conflict with the statute.” Record at 85. The district court treated the motion as one for a preliminary injunction, and held a hearing on the motion. He denied the request, holding that plaintiffs were not likely to succeed on the merits because (1) the Secretary did not abuse his discretion; and (2) there is no due process violation since plaintiffs do not have a protected property interest in the peanut quota allotments and, even if they did, publication of the regulations in the Federal Register provided adequate notice to satisfy due process. The court also held that appellants failed to establish that they would suffer irreparable harm should a preliminary injunction not be granted, and that a preliminary injunction against implementation of the 1984 regulations would run counter to the important public policy of reducing the peanut price support program. II. DISCUSSION To obtain a preliminary injunction, appellants must show that (1) there is a substantial likelihood that they will prevail on the merits at trial; (2) they will suffer irreparable harm if they are not granted the injunctive relief; (3) the benefits the injunction will provide them outweigh the harm it will cause the appellees; and (4) issuance of the injunction will not harm public interests. Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.1983); Shatel Corp. v. Mao Ta Lumber and Yacht Corp., 697 F.2d 1352, 1354-55 (11th Cir.1983). All four of these requirements must be met. The district court held that appellants failed to carry their burden of persuasion as to any of these requirements. We may not reverse the district" }, { "docid": "18517545", "title": "", "text": "However, 11 U.S.C. section 541(d) states in pertinent part: Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest ... becomes property of the estate ... only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold. Until the deed from a prepetition foreclosure sale is recorded, a debtor retains legal title to the property. If the debtor files bankruptcy immediately following the sale, the legal title accompanies the debtor into bankruptcy, and becomes property of the estate. See generally In re Hunt, 160 B.R. 131, 135 (9th Cir. BAP 1993). Once included in the estate, legal title becomes subject to the protection of the Code, and any transfers in legal title may not transpire without complying with the Code provisions. Id. Although the Property was sold prepetition, because the Davissons did not record the Deed prepetition, the Debtors retained legal title to the Property. Immediately upon the Debtors’ filing their voluntary petition, the Property became property of the estate only to the extent of the legal title. As such, the Debtors are entitled to the protection under the Code. Arguably, granting a deed postpetition is not a willful violation of the automatic stay. See In re Flowers, 94 B.R. 3, 8 (Bankr.D.Col.1988). However, bankruptcy courts have held that because a debtor retains a “shadow of title” and granting of a deed interferes with that title, the trustee is barred by the automatic stay from granting a deed postpe-tition. Id.; see also In re Jewett, 146 B.R. 250, 252 (9th Cir. BAP 1992). Because issuing the Deed postpetition to the Davissons would have effectively stripped the Debtors of any remaining interest in the Property, the Trustee correctly determined that action was barred by the automatic stay. The Debtors contend that relief from the automatic stay should not be granted because the Davissons failed to perfect their interest in the Property by not recording the Deed prepetition. Although California law does" }, { "docid": "17226260", "title": "", "text": "of a farm allotment from a farm shall be permitted if any sale of allotment to the same farm has been made within the three immediately preceding crop years; (4) no transfer of allotment shall be effective until a record thereof is filed with the county committee of the county in which such transfer is made and such committee determines that the transfer complies with the provisions of this section; and (5) if the normal yield established by the county committee for the farm to which the allotment is transferred does not exceed the normal yield established by the county committee for the farm from which the allotment is transferred by more than 10 per centum, the lease or sale and transfer shall be approved acre for acre .... 7 U.S.C. § 1358a(b) (2000). Transferal of an allotment was historically subject to approval by the local branch of the Agricultural Stabilization and Conservation Service (“ASCS”). See In re Williams, 136 B.R. 311, 313 (Bankr. M.D.Ga.1992). ASCS approval was constrained by federal law, which only allowed transfers to farms within the same or an adjacent county. See Shepard v. Fed. Land Bank of Columbia, 205 Ga.App. 254, 421 S.E.2d 763, 764 (1992). These restrictions on a quota holder’s ability to transfer his or her quota do not distinguish quotas from other transferable goods that are inarguably property, e.g. alcohol and firearms. The mere fact that transfers of allotments are not unrestricted does not undermine the importance of transferability to the characterization of quotas as a form of property. Further, the Members point out that peanut quotas were long regarded under state law to be personal assets, in part because of their transferable nature. In support of their claims, the Members cite a series of state court decisions that have held a peanut quota to be a personal asset. See, e.g., Mills v. Davis, 577 So.2d 436 (Ala.1991) (noting that peanut quotas are personal property subject to payment of debts, but ultimately dismissing appeal as untimely); McKim v. Kauffman, 205 Ga. App. 794, 424 S.E.2d 11 (1992) (holding peanut quotas to be" }, { "docid": "11080465", "title": "", "text": "Cir. 1981). Plaintiff contends that under 11 U.S.C. § 541, which defines the bankruptcy estate, the estate does not include the one-half interest in the South Orange real estate which the Bankruptcy Court awarded to the Trustee. This is so, plaintiff urges, because the debtor held the property under a constructive trust in favor of plaintiff. The provisions of § 541 upon which plaintiff relies read: (a) The commencement of a case . .. creates an estate. Such estate is comprised of all the following property, wherever located: (1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case. (d) Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest, such as a mortgage secured by real property, or an interest in such a mortgage, sold by the debtor but as to which the debtor retains legal title to service or supervise the servicing of such mortgage or interest, becomes property of the estate under subsection (a) of this section only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold. It is apparent, as plaintiff urges, that in the present case under New Jersey law were the debtor not in bankruptcy he would be deemed to hold his interest in the property subject to a constructive trust in favor of plaintiff. Plaintiff would be entitled, in the circumstances of this case, to a decree reforming the 1973 deed so that it would accomplish the intent of the parties to it. New Jersey courts have recognized the availability of the constructive trust as a means of redressing inequitable results of mistakes in attempts to convey property. See D’Ippolito v. Castoro, 51 N.J. 584, 588-89, 242 A.2d 617 (1968); In re Hoffman, 63 N.J. 69, 81, 304 A.2d 721 (1973). Although courts ordinarily employ a constructive trust where there has been a transfer" }, { "docid": "23607927", "title": "", "text": "the yearly reductions in the national quota. Id. 1358(m). Thus, under the 1981 Act, which creates and defines their quota rights, appellants are entitled to their 1981 quota allotments as adjusted by the 1984 regulations, which, amounts to a nominal allotment or, in many cases, none at all. Appellants have no protected property interest in quotas per se nor in the specific quotas they had in 1983 or any other prior year. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s order denying appellants’ request for a preliminary injunction. We also hold, as a matter of law, that the 1984 regulations are not inconsistent with the 1981 Act and that implementation of these regulations does not violate due process. . It appears from appellants’ complaint that they also claim that the regulations violate equal protection. This claim is not now before us, and we make no comments on it. . Ever since 1970, Congress has permitted peanut allotment holders to lease their quota peanut allotments to other farms. The main reason Congress permitted this was that increased mechanization of the peanut farming process had made it less economical to farm small tracts of land. Some farmers’ allotments were as small as a fraction of an acre. Thus, leasing of allotments allowed farmers to pool their allotments and take advantage of economies of scale in peanut production. Record at 290. . In the preamble to the 1982 final rules, the Secretary said. This rule will apply to the 1982 crop of peanuts only. It is anticipated that proposed regulations will subsequently be issued for the 1983 through 1985 crops of peanuts which will set forth procedures for reducing farm poundage quotas for all farmers, including those in the third category. 47 Fed.Reg. 15968-69. In the preamble to the 1983 rule, the Secretary stated that category III and IV farms would be grouped together only \"for one additional crop year,” 48 Fed.Reg. 9217, and that “[f]or the 1984 and 1985 crops, the method for making poundage quota reductions set forth in the proposed rule [i.e., the category-by-category approach] is adopted.\" Id." }, { "docid": "6278345", "title": "", "text": "time. II The Trustee seeks a determination that the Jonathan and Wainwright Properties are property of the estate. Property of the estate is defined by § 541, which provides in material part: (a) The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held: (1) ... all legal or equitable interests of the debtor in property as of the commencement of the case. (4) Any interest in property preserved for the benefit of or ordered transferred to the estate under section 510(c) or 551 of this title. 11 U.S.C.A. § 541 (West 1993 & Supp.1996). In Tennessee, an unregistered deed is valid and enforceable as between the parties to the instrument. The registration of a deed serves only “to protect the grantee against the grantor’s creditors and purchasers from him without actual notice of the deed.” Hinton v. Robinson, 364 S.W.2d 97, 100 (Tenn.Ct.App.1962). Thus, the Debtor became the owner of the Jonathan Property upon transfer of the Jonathan Deed, even though the deed was not recorded until March 22, 1996. Therefore, upon the Debt- or’s filing of his Chapter 7 petition on December 5, 1995, the Jonathan Property became property of the estate under § 541(a)(1) because it was owned by the Debtor at that time. The Trustee argues that the Wainwright Property is also property of the estate because the Debtor was the equitable owner of the property when he filed his Chapter 7 petition. There is no dispute that prior to the commencement of the Debtor’s Chapter 7 case on December 5, 1995, the Debtor and Defendant had reached an oral agreement regarding the conveyance of the Wainwright Property. The theory advanced by the Plaintiff, known as the doctrine of equitable conversion, is stated as follows: [A] contract for the sale of land operates as an equitable conversion and the vend-ee’s interest under the contract becomes realty and the vendor’s interest becomes personalty, and in equity the vendee is regarded as the owner, subject to liability" }, { "docid": "17226257", "title": "", "text": "on: (1) the petitioner’s inability to assign, sell, or otherwise transfer the permit; (2) the petitioner’s lack of authority to exclude others from the Atlantic Swordfish Fishery; and (3) the government’s retained right to revoke, suspend, or modify the permit under 50 C.F.R. § 635.4(a)(3). Conti, 291 F.3d at 1341-42. “The absence of crucial indicia of a property right, coupled with the government’s irrefutable retention of the right to suspend, revoke, or modify Mr. Conti’s swordfishing permit, compels the conclusion that the permit bestowed a revocable license, instead of a property right.” Id. at 1342. In American Pelagic, we held that there was no protectable property interest in fishery permits and authorizations on the grounds that the petitioner did not have the authority to assign, sell, or transfer its permit and authorization letter and that those legal instruments did not grant the petitioner exclusive privileges to fish for Atlantic mackerel and herring. 379 F.3d at 1374. This court reasoned that since nothing in the language of the regulations precluded the sanction or denial of a permit for reasons unrelated to enforcement, the government had preserved these rights with respect to the permits and authorization letters issued under the regulation. Id. In sum, the decisions by both the Supreme Court and this court imply that a compensable interest is indicated by the absence of express statutory language precluding the formation of a property right in combination with the presence of the right to transfer and the right to exclude. See, e.g., Fuller, 409 U.S. at 494, 93 S.Ct. 801; Am. Pelagic, 379 F.3d at 1374; Conti, 291 F.3d at 1341-42; Mitchell Arms, 7 F.3d at 216. C. Peanut Quota as Property The dimensions of any property interest the Members may have in peanut quota allotments are defined by the 1996 FAIR Act, which created the peanut quotas at issue. The 1996 Act created a right to plant and produce a certain amount of peanuts for a guaranteed minimum price. The government argues that this is no more a property right than government issued licenses or permits. The Members contend that this" }, { "docid": "17226261", "title": "", "text": "transfers to farms within the same or an adjacent county. See Shepard v. Fed. Land Bank of Columbia, 205 Ga.App. 254, 421 S.E.2d 763, 764 (1992). These restrictions on a quota holder’s ability to transfer his or her quota do not distinguish quotas from other transferable goods that are inarguably property, e.g. alcohol and firearms. The mere fact that transfers of allotments are not unrestricted does not undermine the importance of transferability to the characterization of quotas as a form of property. Further, the Members point out that peanut quotas were long regarded under state law to be personal assets, in part because of their transferable nature. In support of their claims, the Members cite a series of state court decisions that have held a peanut quota to be a personal asset. See, e.g., Mills v. Davis, 577 So.2d 436 (Ala.1991) (noting that peanut quotas are personal property subject to payment of debts, but ultimately dismissing appeal as untimely); McKim v. Kauffman, 205 Ga. App. 794, 424 S.E.2d 11 (1992) (holding peanut quotas to be property such that a failure to convey a quota under a contract constitutes breach). The government argues that these eases do not stand for the proposition that quotas are compensable property interests, but only illustrate that, in some circumstances, quotas are treated like property. The Members counter that the treatment of quotas as property im plies that they are property for all intents and purposes. The cases addressing the issue of whether an agricultural allotment is property are less than straightforward in their conclusions; courts have arrived at different conclusions, compare Walker v. Miller, 507 S.W.2d 606, 609 (Tex.App.1974) (“An allotment under the [AAA] has been recognized as intangible personal property, subject to devise, inheritance, transfers and sales, division by a district court in divorce proceedings, and to treatment as property in bankruptcy proceedings. It is recognized that an allotment has a market value, and the statutory restrictions on transfer to not negate the possibility of transfer.”) with Callaway v. Block, 763 F.2d 1283, 1290 (11th Cir.1985) (“Appellants have no protected property interest in quotas" }, { "docid": "23607909", "title": "", "text": "JAMES C. HILL, Circuit Judge: Appellants/plaintiffs, eight Georgia peanut farmers, appeal a district court order denying their request for a preliminary injunction barring implementation of the regulations currently promulgated as 7 C.F.R. Part 729 (“the 1984 regulations”). These regulations were adopted by the Secretary of Agriculture in 1984 to implement the provisions of the Agriculture and Food Act of 1981, Pub.L. 97-98, 95 Stat. 1213, (“the 1981 Act”), that authorize a reduction of the national peanut quota. We affirm the district court’s order, and also reach the merits of some of appellants’ claims, holding that the regulations are not inconsistent with the 1981 Act and that implementation of the regulations does not violate due process. I. BACKGROUND A. The 1981 Act and Implementing Regulations For some time, the United States has had a national peanut quota. Peanut farmers throughout the country are given allotments of the quota, based primarily on the peanut production history of their land. The federal government provides guaranteed price supports for these quota peanuts, in an effort to provide peanut farmers with some income protection and consumers with consistent prices. The 1981 Act amended prior acts governing peanut quotas by, among other provisions, reducing the national peanut quota in measured steps from 1982 through 1985. Specifically, the quota was to be reduced from 1,440,000 tons for 1981 to 1,200,000 tons for 1982, 1,167,300 tons for 1983, 1,134,700 tons for 1984, and 1,100,000 tons for 1985. 7 U.S.C. § 1358(k). In the Act, Congress directed the Secretary of Agriculture (“the Secretary”) to accomplish these yearly reductions by “insofar as practicable and on such fair and equitable basis as the Secretary may by regulation prescribe” reducing the allotments made to the following peanut farms: (1) those that have not produced their allotted quota because of inadequate tillable land (“category I farms”); (2) those that, during two of the three previous years, did not produce their allotted quota for any reason other than natural disaster (“category II farms”); and (3) those where the quota was produced but by another operator on a farm to which the allotted quota was" }, { "docid": "17226258", "title": "", "text": "permit for reasons unrelated to enforcement, the government had preserved these rights with respect to the permits and authorization letters issued under the regulation. Id. In sum, the decisions by both the Supreme Court and this court imply that a compensable interest is indicated by the absence of express statutory language precluding the formation of a property right in combination with the presence of the right to transfer and the right to exclude. See, e.g., Fuller, 409 U.S. at 494, 93 S.Ct. 801; Am. Pelagic, 379 F.3d at 1374; Conti, 291 F.3d at 1341-42; Mitchell Arms, 7 F.3d at 216. C. Peanut Quota as Property The dimensions of any property interest the Members may have in peanut quota allotments are defined by the 1996 FAIR Act, which created the peanut quotas at issue. The 1996 Act created a right to plant and produce a certain amount of peanuts for a guaranteed minimum price. The government argues that this is no more a property right than government issued licenses or permits. The Members contend that this right is a property right because, unlike the permits and licenses discussed in Conti and American Pelagic, the provisions of the 1996 FAIR Act and state case law establish that a peanut quota allotment was transferable and exclusive. We agree with the Members. 1. Transferability The right to transfer is a traditional hallmark of property. See Loretto, 458 U.S. at 435-36, 102 S.Ct. 3164 (describing the right to dispose of property as part of an individual’s bundle of property rights). The Members have established that the peanut quota was transferable. The 1996 FAIR Act specifically allowed the peanut quota to be transferred, 7 U.S.C. § 1358a(a) (2000), albeit subject to certain limiting conditions. The 1996 FAIR Act provides, in relevant part: Transfers under this section shall be subject to the following conditions: (1) no allotment shall be transferred to a farm in another county; (2) no transfer of an allotment from a farm subject to a mortgage or other lien shall be permitted unless the transfer is agreed to by the lien-holders; (3) no sale" }, { "docid": "17226244", "title": "", "text": "Stat. 658 (the “1967 Act”). The 1967 Act also permitted an owner of a farm with an acreage allotment to transfer the allotment to his other farms. Transfers were restricted such that they were only permitted between farms within the county in which the peanut acreage allotment was apportioned. Other restrictions further limited the transferability of the allotments. By 1977, the introduction of new seed varieties, new fertilizers, and new farm management techniques had substantially increased the yield of peanuts per acre. As a result, there was an oversupply of peanuts. These conditions prompted Congress to revamp the peanut program in the Food and Agriculture Act of 1977, Pub.L. No. 95-113, §§ 801-807, 91 Stat. 913, 944-49 (the “1977 Act”). The 1977 Act temporarily suspended much of the AAA and its subsequent amendments and, in its place, instituted poundage quotas based on the weight of peanuts produced by the quota holders. The new poundage quotas applied only to peanuts destined for domestic edible use. The poundage quota system was used in conjunction with the acreage allotment system; a poundage quota was established for each farm that possessed an acreage allotment under the AAA. The 1977 Act also amended the price support program to provide different support levels for “quota peanuts” and “additional peanuts.” Quota peanuts were any peanuts that were eligible for domestic edible use and that did not exceed the poundage quota of the farm. Additional peanuts were any peanuts that were in excess of a farm’s poundage quota but not in excess of the actual production of the acreage allotment. This differentiation continued to discourage overproduction because the price support provided for additional peanuts was substantially lower than that provided for quota peanuts. In 1981, Congress passed yet another law that temporarily suspended the AAA. The Agriculture and Food Act of 1981, Pub.L. No. 97-98, §§ 701-707, 95 Stat. 1213, 1248-56 (the “1981 Act”). The 1981 Act terminated acreage allocations and marked the end of a four year transition to the poundage quota system that began with the 1977 Act. The 1981 Act retained the two-tiered system (of" }, { "docid": "18889821", "title": "", "text": "The note and deed were surrendered by Austein and paid off by the Nesses. The proceeds were deposited in a blocked account, designated as being in the constructive possession of the Trustee and Austein. Austein appealed. ANALYSIS In bankruptcy the estate “is comprised of all the following property, wherever located and by whomever held: ... all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The statute was amended in 1984 to add the words “and by whomever held” after “wherever located.” Exceptions to this sweeping language are carefully enumerated in subsections (b), (c)(2), and (d). The express enumeration indicates that other exceptions should not be implied. Until foreclosure the debtor had the power to regain the notes and deeds by paying off his debts to Austein. Cal.Com. Code § 9506. In short, he held a form of equitable interest in the property. We have already held that a “pre-foreclosure right to redeem the entire note” is “an independent property right” that becomes “part of the bankruptcy estate under 11 U.S.C. § 541.” Harsh Inv. Corp. v. Bialac, (In re Bialac), 712 F.2d 426, 430 (9th Cir.1983). It is an interest that is not reached by any of the section 541 exceptions. The 1984 amendment adding “by whomever held” reinforces the broad language that speaks of “all legal or equitable interests of the debtor.” There can be no doubt that the debtor here—either personally or as a general partner in the partnership—did have an interest in the equity of redemption in the notes and deeds and that therefore that equitable interest in the notes and deeds was property falling within the jurisdiction of the bankruptcy court. Dewhirst v. Citibank, (In re Contractors Equip. Supply Co.), 861 F.2d 241 (9th Cir. 1988). Austein makes the argument that under 11 U.S.C. § 108(b) the Trustee had only 60 days in which to cure the debtor’s prepetition defaults. But that argument supposes that Austein had successfully foreclosed on the property. Austein failed to extinguish the equity of redemption in accordance with state" }, { "docid": "23607910", "title": "", "text": "with some income protection and consumers with consistent prices. The 1981 Act amended prior acts governing peanut quotas by, among other provisions, reducing the national peanut quota in measured steps from 1982 through 1985. Specifically, the quota was to be reduced from 1,440,000 tons for 1981 to 1,200,000 tons for 1982, 1,167,300 tons for 1983, 1,134,700 tons for 1984, and 1,100,000 tons for 1985. 7 U.S.C. § 1358(k). In the Act, Congress directed the Secretary of Agriculture (“the Secretary”) to accomplish these yearly reductions by “insofar as practicable and on such fair and equitable basis as the Secretary may by regulation prescribe” reducing the allotments made to the following peanut farms: (1) those that have not produced their allotted quota because of inadequate tillable land (“category I farms”); (2) those that, during two of the three previous years, did not produce their allotted quota for any reason other than natural disaster (“category II farms”); and (3) those where the quota was produced but by another operator on a farm to which the allotted quota was transferred by lease two of the previous three years (“category III farms”). Id. § 1358(Z )(2)(A) (emphasis added). The Act also states that to achieve the reduction, “reductions ... shall be made first under clause (i) [which deals with category I farms] ... and, if necessary, under clause (ii) (I) [which deals with category II farms] and then clause (ii)(II) [which deals with category III farms]____” Id. If these reductions are not sufficient to meet the mandatory quota reductions for any given year, the Act directs that the balance be made up “by such further reduction in ... quotas for farms ... as the Secretary determines to be fair and equitable.” Id. § 1358(Z)(2)(C). Those farms falling into this catch-all category, which covers potentially all peanut farms, are referred to herein as category IV farms. In March 1982, the Secretary proposed regulations to implement that year’s reduction. These regulations adopted what appellants call a “category-by-category” reduction plan. Under that plan, the quota allotments of category I farms were reduced first, then those of category II" }, { "docid": "23605223", "title": "", "text": "is concluded prior to the conclusion of the foreclosure. Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION. [14-point boldface type if printed or in capital letters if typed]” Unless otherwise specified, the notice, if printed, shall appear in at least 12-point boldface type. . The facts in this case are not as complicated as some that come before the Court. The foreclosure was postponed only six times. Debtors’ trust deed was transferred only once by their original mortgagee to Meritor (which was then known as Homemakers Financial Service), which then obtained relief from stay. Only then did Meritor sell the note and deed of trust to the defendants. In contrast, security interests in real property are frequently transferred several times between the time that they are granted by a debtor and when foreclosure begins. A debtor is frequently unaware of the transfers because the original lender continues to serve as the servicing agent for the various owners of the security interest, and no actual notice of the transfer is given to the debtor. In addition, as noted supra, foreclosure sales are frequently postponed many more times than in this case. . Bankruptcy Code § 541(a), 11 U.S.C.A. § 541(a) (West 1979 & Supp.1990) provides: The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all of the following property, wherever located and by whomever held: (1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case. . Under chapter 13 the debtor is entitled to the excess value to the extent of any applicable exemption, and is entitled to any surplus in the estate after all creditors are paid. . Bankruptcy Code § 1325(a), 11 U.S.C.A. § 1325(a) (West 1979), provides in relevant part: Except as provided in subsection (b), the court shall confirm a plan if— (4) the value, as of the effective date of the plan, of property to be distributed under the" }, { "docid": "17226259", "title": "", "text": "right is a property right because, unlike the permits and licenses discussed in Conti and American Pelagic, the provisions of the 1996 FAIR Act and state case law establish that a peanut quota allotment was transferable and exclusive. We agree with the Members. 1. Transferability The right to transfer is a traditional hallmark of property. See Loretto, 458 U.S. at 435-36, 102 S.Ct. 3164 (describing the right to dispose of property as part of an individual’s bundle of property rights). The Members have established that the peanut quota was transferable. The 1996 FAIR Act specifically allowed the peanut quota to be transferred, 7 U.S.C. § 1358a(a) (2000), albeit subject to certain limiting conditions. The 1996 FAIR Act provides, in relevant part: Transfers under this section shall be subject to the following conditions: (1) no allotment shall be transferred to a farm in another county; (2) no transfer of an allotment from a farm subject to a mortgage or other lien shall be permitted unless the transfer is agreed to by the lien-holders; (3) no sale of a farm allotment from a farm shall be permitted if any sale of allotment to the same farm has been made within the three immediately preceding crop years; (4) no transfer of allotment shall be effective until a record thereof is filed with the county committee of the county in which such transfer is made and such committee determines that the transfer complies with the provisions of this section; and (5) if the normal yield established by the county committee for the farm to which the allotment is transferred does not exceed the normal yield established by the county committee for the farm from which the allotment is transferred by more than 10 per centum, the lease or sale and transfer shall be approved acre for acre .... 7 U.S.C. § 1358a(b) (2000). Transferal of an allotment was historically subject to approval by the local branch of the Agricultural Stabilization and Conservation Service (“ASCS”). See In re Williams, 136 B.R. 311, 313 (Bankr. M.D.Ga.1992). ASCS approval was constrained by federal law, which only allowed" } ]

[ { "docid": "15196490", "title": "", "text": "the reorganization of the Central Trust Company of Illinois, the National Bank of the Republic of Chicago and the Chicago Trust Company, the National Republic Company, an investment affiliate of the two latter banks, agreed to indemnify the defendant bank against all undisclosed liabilities of the National Bank' of the Republic of Chicago and of the Chicago Trust Company which might be asserted against the defendant bank. The term “liabilities” as used in the indemnification agreement was defined to include “liabilities for taxes of whatsoever kind.” Defendant bank was organized in July, 1931, as a consolidation of Chicago Trust Company, Central Trust Company, and National Bank of the Republic, and became liable to the United States for taxes assessed against it as transferee of said banks in the aggregate amount of $45,478.-18. All of said tax claims accrued against defendant bank on July 25, 1931, and are now due and unpaid. Claimants, other than plaintiff, have filed claims against defendant bank in dissolution proceedings in the state court, and with the receiver of the bank. Claims aggregating $288,451.27 have been filed with the receiver in this court. The files of the receiver show unpaid claims against defendant bank based on invoices aggregating $8,959.43 in amount. There are unsatisfied judgments and decrees against defendant bank for more than $25,000. The books of the bank show items of interest rebates due to more than one hundred persons, in the aggregate amount of between $4,000 and $5,000. WILKERSON, District Judge (after finding the facts as above). After the motions to dismiss were overruled [(D.C.) 11 F.Supp. 976], the defending stockholders filed answers and the suit has been heard on the merits. The principal defenses relied on are: 1. The Reconstruction Finance Corporation Act is unconstitutional. 2. Plaintiff, in view of the' federal law creating it, has no right, under the facts of this case, to enforce the stockholders’ liability arising from the Constitution of Illinois. 3. The $50,000,000 transaction of October 6, 1932 was ultra vires the plaintiff. 4. The $50,000,000 transaction of October 6, 1932, was illegal and in violation of section" } ]

[ { "docid": "15196483", "title": "", "text": "the defendant bank on July 25, 1931, but on none of the other aforementioned dates. Many of the defendants were such record owners of stock from July 25, 1931, until after June 29, 1932, but ceased to be such record owners prior to October 6, 1932. Many of the defendants were not such record owners on or prior to June 29, 1932, but became such record owners prior to October 6, 1932, were such record owners on October 6, 1932, and continued to be such record owners until the close of business on July 11, 1933. Many persons who are not defendants herein were not such record owners of stock of the defendant bank on or prior to October 6, 1932, but became such record owners of such stock subsequently to October 6, 1932, and were such record owners of such stock on November 19, 1932, or on March 31, 1933, or on both of said dates. Pursuant to the provisions of section 5 of the Reconstruction Finance Corporation Act (47 Stat. 6), the plaintiff has made numerous loans to the various types of financial institutions enumerated in said section 5, the stockholders of which are not liable in any degree whatsoever for the liabilities of such financial institutions respectively. The plaintiff has also made numerous loans to banks organized under the laws of, and located in, all the states of the United States and to national banking associations. On and prior to July 25, 1931, the Chicago Trust Company was a banking association duly organized and existing under and by virtue of the General Banking Act of 1919, as amended (Smith-Hurd Ill.Stats. c. 16%, § 1 et seq.), of Illinois; and had its usual and principal place of business in Chicago, 111. On and prior to July 25, 1931, the Central Trust Company of Illinois was a banking association duly organized and existing under and by virtue of the General Banking Act of 1919, as amended, of Illinois; and had its usual and principal place of business in Chicago, 111. On and prior to July 25, 1931, the National" }, { "docid": "15196484", "title": "", "text": "has made numerous loans to the various types of financial institutions enumerated in said section 5, the stockholders of which are not liable in any degree whatsoever for the liabilities of such financial institutions respectively. The plaintiff has also made numerous loans to banks organized under the laws of, and located in, all the states of the United States and to national banking associations. On and prior to July 25, 1931, the Chicago Trust Company was a banking association duly organized and existing under and by virtue of the General Banking Act of 1919, as amended (Smith-Hurd Ill.Stats. c. 16%, § 1 et seq.), of Illinois; and had its usual and principal place of business in Chicago, 111. On and prior to July 25, 1931, the Central Trust Company of Illinois was a banking association duly organized and existing under and by virtue of the General Banking Act of 1919, as amended, of Illinois; and had its usual and principal place of business in Chicago, 111. On and prior to July 25, 1931, the National Bank of the Republic of Chicago was a national banking association duly organized and existing under and by virtue of the-National Bank Act (12 U.S.C.A. § 21 et seq.) and had its usual and principal place of business in Chicago, 111. On July 25, 1931, the National Bank of the Republic of Chicago, as “grantor,” and the Chicago Trust Company, as “grantee,” entered into an agreement providing, among- other things, as follows: “1. Except as hereinafter set forth, the Grantor has sold, conveyed, transferred, set over and delivered, and by these presents does sell, convey, transfer, set over and deliver, to the Grantee all the assets, business, effects and property of the Grantor, real, personal and mixed, tangible and intangible, of every kind, nature and de scription and wheresoever situate, including particularly, but not exclusively, any and all property of every kind, nature and description held in trust by or in possession of any other person, persons or corporation whatsoever for the benefit of the Grantor or in which the Grantor has any right, claim" }, { "docid": "1604744", "title": "", "text": "recommendations. The facts supported by substantial evidence are as follows: On January 18, 1927, Julia A. Miner, a resident of Lincoln, Nebraska, died testate, possessed of property in Illinois, Nebraska and Washington. On October 19, 1927, an exemplified copy of her will was probated in the Probate Court of Cook County, Illinois, and the Central Trust Company of Illinois was by that court appointed administrator with the will annexed. The estate was finally settled and closed by that court, and the Central Trust Company was discharged as such administrator on April 3, 1929. By her will the testatrix, after payment of certain specific bequests, devised and bequeathed her residuary estate to Central Trust Company of Illinois, as trustee for the purposes set forth in her will. It began administration of the trust on April 30, 1927, under the jurisdiction of the Cook County Circuit Court of Illinois, but was subsequently succeeded as trustee by Central Republic Trust Company of Illinois, due to consolidation proceedings and change of name of the old company. On April 3, 1933, the Central Republic Trust Company filed in the Circuit Court of Cook County, Illinois, a bill of complaint asking that a successor trustee to itself be named, its own resignation accepted, and its accounts passed upon and approved. On November 10, 1933, that court accepted the resignation, appointed appellant as successor trustee, and reserved jurisdiction for settlement of the accounts of the Trust Company as trustee. In that action appellant also filed a cross-bill against the Trust Company alleging the same breaches of trust as are involved in his instant claim. A final decree was entered in that suit by the Cook County Circuit Court on August 18, 1939, while appellant’s claim was pending in the case at bar. That decree recites that Miner, the successor trustee, had objected to certain actions and failure to act on the part of the trustee bank. It contains the following language: “Said action and failures to act, and particularly the refusal of said Trustee to accept certain offers to purchase the so-called Ainslie Street property, were breaches" }, { "docid": "15196552", "title": "", "text": "between the plaintiff and the defendant bank were lawful; (6) all of the transactions between the plaintiff and defendant bank were within the corporate powers of both plaintiff and defendant bank; (7) none of the transactions between plaintiff and defendant bank violate section 207 of the Reconstruction Finance Corporation Act (15 U.S.C.A. § 605d); (8) none of the transactions between plaintiff and defendant violate the public policy of Illinois; (9) defendant bank on October 6, 1932, was a banking corporation or banking institution within the meaning of section 6 of article 11 of the Illinois Constitution; (10) all of the acts of the directors of defendant bank with reference to the readjustment of the affairs of said bank and the contract with the City National Bank & Trust Company for the assumption of its deposit liabilities either were within the power of the board of directors of the bank or were ratified by the stockholders at the meeting on November 19, 1932; (11) plaintiff is not barred by fraudulent or inequitable conduct, or by conspiracy with the officers of the bank to injure stockholders of defendant bank for the benefit of City National Bank & Trust Company, from enforcing its rights in this case; (12) plaintiff has made proper application of the credits resulting from the sale of collateral; (13) defendant bank has liabilities to other creditors than the plaintiff, for which the defendant stockholders are liable; (14) plaintiff is entitled to a decree in accordance with the prayer of its bill. A decree in accordance with the above conclusions may be prepared by counsel for plaintiff and presented for entry after giving notice according to the rules of the court. The application provided in part as follows: “Central Republic Bank and Trust Company (hereinafter called the applicant), a Bank organized and existing under the laws of Illinois, and having its principal place of business at Chicago, Illinois, hereby applies to Reconstruction Finance Corporation (hereinafter called the Corporation) for a loan not to exceed in the aggregate $95,000,000,’ to mature on or before December 24, 1932 and to be secured" }, { "docid": "15196489", "title": "", "text": "subsequent required to be performed by the banking laws of Illinois in order to perfect said consolidation were duly performed. After the execution of the agreement between the National Bank of the Republic of Chicago and the Chicago Trust Company referred to herein and at the time of the said consolidation, the Chicago Trust Company had assets equal to its known liabilities and $12,000,000 additional assets. At the time of the said consolidation the Central Trust Company of Illinois had assets equal to its known liabilities and $16,000,000 additional assets. After the consolidation of the Chicago Trust Company and the Central Trust Company of Illinois, the defendant bank had assets equal to its known liabilities, being the liabilities of the Chicago Trust Company and the Central Trust Company of Illinois, and $28,000,000 additional assets. These additional assets account for the capital of $14,000,000, the surplus of $10,000,000, and the reserve for operating expenses of $4,-000,000, which the defendant bank set up at the time of its organization. As a part of the general plan for the reorganization of the Central Trust Company of Illinois, the National Bank of the Republic of Chicago and the Chicago Trust Company, the National Republic Company, an investment affiliate of the two latter banks, agreed to indemnify the defendant bank against all undisclosed liabilities of the National Bank' of the Republic of Chicago and of the Chicago Trust Company which might be asserted against the defendant bank. The term “liabilities” as used in the indemnification agreement was defined to include “liabilities for taxes of whatsoever kind.” Defendant bank was organized in July, 1931, as a consolidation of Chicago Trust Company, Central Trust Company, and National Bank of the Republic, and became liable to the United States for taxes assessed against it as transferee of said banks in the aggregate amount of $45,478.-18. All of said tax claims accrued against defendant bank on July 25, 1931, and are now due and unpaid. Claimants, other than plaintiff, have filed claims against defendant bank in dissolution proceedings in the state court, and with the receiver of the bank." }, { "docid": "15196486", "title": "", "text": "or interest of any kind, directly or indirectly, all as of the close of business on July 24, 1931, to be the absolute property forever of the Grantee, upon the terms and conditions herein contained. * ^ * “3. Nothing herein contained shall be construed as transferring to the Grantee any property or assets held by the Grantor in any trust capacity created by any written instrument or by the appointment of any court or other appointing body, nor shall anything in this instrument contained be construed as an assumption by the Grantee of any liabilities of any kind or character'of the Grantor as trustee in any such trust. * * * “8. It is the intention of these presents that (except as otherwise provided in paragraph 3 and paragraph 7 hereof) the Grantor shall, and it does hereby, convey and transfer to the Grantee each and every species and item of property, right, privilege or thing of value belonging to the Grantor which it is in law capable of so transferring and conveying, and that in respect of any property belonging to Grantor which Grantor is presently incapable of transferring Grantor will convert or realize upon the same as rapidly as possible and pay over to Grantee from time to time the net proceeds of such conversion or realization.” On July 25, 1931, the National Bank of the Republic of Chicago made the transfer provided for by the aforesaid agreement of July 25, 1931, and as part of the consideration for the assets so transferred, the Chicago Trust Company duly issued. 1,000 new shares of its capital stock to certain trustees for the benefit of the stockholders of the National Bank of the Republic of Chicago. Thereafter, and on July 25, 1931, the respective boards of directors and the stockholders of the Chicago Trust Company and the Central Trust Company of Illinois duly adopted resolutions providing that the Chicago Trust Company and Central Trust Company of Illinois consolidate' to form the Central Republic Bank & Trust Company, the defendant bank herein referred to, in accordance with the banking laws" }, { "docid": "12523586", "title": "", "text": "have pressed their defenses, is our justification for going into the case so fully. The issues: Either collectively, or as a group or groups, defendants deny: 1. The R. F. C,’s authority to sue un-de-r the Act of its creation; 2. The existence of the necessary creditor status to permit it to maintain an action to collect stockholder’s liability; 3. The R. F. C.’s reliance upon the bank stockholder’s liability in making the loan without which no recovery may be had; 4. The R. F. C.’s claim of. .a single loan transaction evidenced by an R. F. C. commitment of $90,000,000; 5. The validity of the reorganization and transfer of assets of the Central Republic Trust. Company to the City National Bank because not approved by the Illinois auditor under section 15 of the Illi- nois Banking Act, Ch. 16%, Smith-Hurd Ill.Rev. Stats.; 6. The validation of the reorganization through ratification by the stockholders; 7. The banking status of the Central Republic Trust Company when it ceased receiving deposits on October 5; 8. The soundness of plaintiff’s differentiation of the case of Continental Illinois National Bank & Trust Co. v. Peoples Trust & Savings Bank, 366 111. 366, 9 N. E.2d 53, upon which defendants rely for construction of section 15 of the Illinois Banking Act; 9. The recoverability of loans made malum prohibitum by Federal statute, Title 15 U.S.C.A. § 605d, section 207 of the Reconstruction Finance Corporation Act of 1932; and . 10. The right of the R. F. C. to apply proceeds from the sale of pledged securities to the last and allegedly void loan ($50,000,000) in preference to the earlier loan ($30,000,000). To these defenses, one group adds another, a factual defense. They assert that the stockholders were misled into any ratification they may have made in the belief that the reorganization was to relieve them of the threat of double liability and add, there was a fraudulent conspiracy between the R. F. C., and certain officers of the old bank and of the new bank, which resulted in great loss to the old bank and" }, { "docid": "12523633", "title": "", "text": "concern ourselves over the soundness or persuasiveness of the reasons which support it. The Illinois Supreme Court decision in the Peoples Trust & Savings Bank case is controlling as to the questions there decided. As to soundness of the reasons back of the, decisions we are, of necessity, noncommittal. Defendants here charge that the $50,-000,000 loan by plaintiff (the October 6th loan) was to liquidate Central and to transfer its assets to City National which would assume Central’s obligations to depositors, and being without the knowledge, consent, 0r approval of the State Auditor of Pub-He Accounts of Illinois, was an evasion and a violation of the banking laws of II-linois and violative of the public policy of said state. Further, the defendants argue that the Illinois banking laws afford the exclusive statutory method of liquidation 0f Illinois state banks. Sec. 15, Ch. 16%, Smith-Hurd Ill.Stat.Ann. And defendants finally conclude that baving actually participated in a scheme to evade and violate tbe banking lawS; the plaintiff cannot now ,invoke the Illinois statute or organic law t0 enforce tbe bank stockholders' liability ^ ........ .... ... The applicability of this decision turns upon the facts of our case. We must accept those set fortb in the findingS; unless defendants can show neCessity for their modification The dedsion in ^ Peoples Trust case js tbe storm center around which the plaintiff and the defendants attack and defend. A study of its facts (ignoring the conclusion for a moment) at once em-phasizes the vital differences between it and the instant case. Some of these differences are: In the Peoples Trust case the creditor, seeking to enforce the stockholders’ liability, was a party to the agreement under fire — the alleged liquidating agreement. In the instant case, the plaintiff was not a party to. the agreement between Central and the new bank. It may have known of such an agreement (and even approved), and we find that it did, but that did not make-it a party thereto nor liable as a party. Secondly, the agreement between the two banks in the Illinois case was in" }, { "docid": "12523583", "title": "", "text": "EVANS, Circuit Judge. ' The Reconstruction Finance Corporation is the plaintiff, and certain stockholders of the Central Republic Trust Company (hereinafter called Central) are the defendants in this suit which resulted in a decree for the plaintiff. Central was also named as defendant. The numerous appeals were consolidated and heard together. Plaintiff, in this suit, seeks to recover money decrees against stockholders of Central, in amounts equal to the par value of their stock holdings. About one-half of the stockholders have paid a liability similar to that asserted in this suit. All the defendants deny any and all liability. Plaintiff’s right to bring this suit is traceable to, or grows out of, its loan of $90,000,000 to Central, a state bank organized under the laws of the state of Illinois, with 140,000 shares of stock of $100 par value per share outstanding. Liability of holders of bank stock is fixed by section 6 of Article 11 of the Constitution of the State of Illinois, Smith-Hurd Stats., and by section 6 of the Illinois Banking Act. Section 6, Article 11, of the Illinois Constitution reads; ‘ “Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder.” Section 6 of the Illinois Banking Act, Sec. 6, Chap. 16%, Smith-Hurd Ill.Stats. Ann., reads: “Every stockholder in any bank or banking association organized under the provisions of this Act shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder. * * * ” This statute has frequently been before the Illinois courts. The defendants have divided into groups, and these different groups raise different, as well as common, defenses. The District Court made detailed findings of" }, { "docid": "15196462", "title": "", "text": "hereafter owing by said Central Republic Bank and Trust Company to Reconstruction Finance Corporation.” These agreements were dated October 5, 1932, were executed in the afternoon of October 5, 1932, and were delivered in the morning of October 6, 1932. On, and a few days prior to, October 6, 1932, the plaintiff knew that the $50,-000,000 which it was to disburse to the defendant bank on October 6, 1932, would be transferred to the City National Bank in consideration for the assumption by that bank of the deposit liabilities of the defendant bank. The following documents were prepared by Messrs. Pam and Hurd, as counsel for the defendant bank, and were approved, prior to their delivery, by counsel for the plaintiff: The agreement for the assumption by City National Bank of- the' deposit liabilities of the defendant bank; the lease dated October 5, 1932, ber tween the defendant bank and Central Republic Company; the pledge agreement between the defendant bank and the Central Republic Company securing the payment of rentals under said lease; the assignments by the defendant bank to the plaintiff of the rentals under said lease and the security rights under said pledge agreement; the agreement between the defendant bank and the City National Bank for the servicing of the real estate loan department and the trust department of the defendant bank; the assignment of notes- and securities from the defendant bank to the plaintiff; and the assignment of notes and securities from the plaintiff to the City National Bank. Messrs. Pam and Hurd also prepared the necessary papers for the organization of the City National Bank. These documents were not referred to counsel for the plaintiff but such counsel were assured by the morning of October 6, 1932, that the City National Bank had been duly organized. On October 5, 1932, the directors of defendant bank sent to its stockholders a communication as follows: * * “The nation-wide decline in bank deposits which culminated last June in a succession of local outlying bank failures, resulted in very heavy withdrawals from Central Republic Bank and Trust Company. The" }, { "docid": "12523584", "title": "", "text": "Section 6, Article 11, of the Illinois Constitution reads; ‘ “Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder.” Section 6 of the Illinois Banking Act, Sec. 6, Chap. 16%, Smith-Hurd Ill.Stats. Ann., reads: “Every stockholder in any bank or banking association organized under the provisions of this Act shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder. * * * ” This statute has frequently been before the Illinois courts. The defendants have divided into groups, and these different groups raise different, as well as common, defenses. The District Court made detailed findings of fact and discussed at length, in a carefully prepared opinion, and in a manner befitting the importance of the case, the various objections of the different groups. The court covered separately and fully all the issues of fact and disputed legal issues which are here presented. Its findings of fact and opinion appear in Reconstruction Finance Corp. v. Central Republic Trust Co., D.C., 17 F.Supp. at page 263. This discussion greatly simplifies our task and shortens this opinion. We refer to Judge Wilkerson’s findings and opinion for a complete statement of the material facts, as well as of the legal questions involved. In fact, we might well adopt both the findings and the opinion as our own, and thus end this opinion. While inclined so to do, we have hesitated because we would not thus fairly meet the criticisms of them, which are set forth in the exhaustive briefs which have been submitted by the various defendants on these appeals. The importance of the case, as well as .the earnestness and ability with which counsel" }, { "docid": "15196488", "title": "", "text": "of Illinois. These resolutions all contained the following paragraph: “(k) The Consolidated Corporation (meaning the Central Republic Bank and Trust Company), shall possess and be vested with all of the rights, privileges, powers, franchises, licenses, estate, effects, things in action, moneys, debts due upon whatever account, trusts, and property, real, personal and mixed, of every kind and character of said Chicago Trust Company and said Central Trust Company of Illinois, and shall be subject to all of their respective debts,, liabilities and duties.” On the same day, July 25, 1931, all steps required by the banking laws of Illinois to effect the consolidation of the Chicago Trust' Company and the Central Trust Company of Illinois to form the defendant bank were duly taken by duly authorized persons, and on said day, pursuant to the banking laws of Illinois, the Auditor of Public Accounts of Illinois duly approved said consolidation and issued a certificate authorizing said defendant bank to commence business as a bank or banking association under the banking laws of Illinois. Thereafter, all conditions subsequent required to be performed by the banking laws of Illinois in order to perfect said consolidation were duly performed. After the execution of the agreement between the National Bank of the Republic of Chicago and the Chicago Trust Company referred to herein and at the time of the said consolidation, the Chicago Trust Company had assets equal to its known liabilities and $12,000,000 additional assets. At the time of the said consolidation the Central Trust Company of Illinois had assets equal to its known liabilities and $16,000,000 additional assets. After the consolidation of the Chicago Trust Company and the Central Trust Company of Illinois, the defendant bank had assets equal to its known liabilities, being the liabilities of the Chicago Trust Company and the Central Trust Company of Illinois, and $28,000,000 additional assets. These additional assets account for the capital of $14,000,000, the surplus of $10,000,000, and the reserve for operating expenses of $4,-000,000, which the defendant bank set up at the time of its organization. As a part of the general plan for" }, { "docid": "1604743", "title": "", "text": "SPARKS, Circuit Judge. The questions here presented arose out of a suit by the Reconstruction Finance Corporation, on behalf of all the creditors of the Central Republic Trust Company, against the stockholders of that trust company, to enforce the liability said to be imposed by the Illinois Constitution. In that action appellant Miner filed a claim in the District Court on February 21, 1938. He therein alleged that he was a creditor of the Central Republic Trust Company by reason of certain breaches of trust of the Central Trust Company, a predecessor corporation. This phase of the case was referred to a master who heard' the evidence as to the nature and extent of the breaches of trust, upon which asserted damages amounted to $229,409.52. The master ruled that the claimant was restricted to the sum of $25,000 because the amount of the claim was limited by certain orders entered in the Circuit Court of Cook County. The District Court overruled appellant’s objections to the master’s report, and entered a decree in accordance with its recommendations. The facts supported by substantial evidence are as follows: On January 18, 1927, Julia A. Miner, a resident of Lincoln, Nebraska, died testate, possessed of property in Illinois, Nebraska and Washington. On October 19, 1927, an exemplified copy of her will was probated in the Probate Court of Cook County, Illinois, and the Central Trust Company of Illinois was by that court appointed administrator with the will annexed. The estate was finally settled and closed by that court, and the Central Trust Company was discharged as such administrator on April 3, 1929. By her will the testatrix, after payment of certain specific bequests, devised and bequeathed her residuary estate to Central Trust Company of Illinois, as trustee for the purposes set forth in her will. It began administration of the trust on April 30, 1927, under the jurisdiction of the Cook County Circuit Court of Illinois, but was subsequently succeeded as trustee by Central Republic Trust Company of Illinois, due to consolidation proceedings and change of name of the old company. On April 3," }, { "docid": "15196468", "title": "", "text": "Bank, paying therefor the subscription price of $125 a share. On October 20, 1932, notice was given to the stockholders of defendant bank of a stockholders’ meeting to be held on November 19, 1932. At the meeting on November 19, 1932, 99,927 shares of the capital stock of defendant bank, out of a total of 140,000 shares, were represented either • in person or by proxy. At this meeting by vote of 98,271 shares to 280 shares the following resolution was adopted: “Be it resolved by the stockholders of Central Republic Bank and Trust Company that the stockholders of this corporation do hereby in all respects ratify, approve and confirm the action of the Board of Directors of this corporation in authorizing, and the action of the officers of this corporation in consummating, the following transactions in respect of the readjustment of the affairs of this corporation, to wit: “(a) A transaction whereby on or about June 27, 1932 this corporation entered into an arrangement for a loan from Reconstruction Finance Corporation and certain Chicago Banks associated with it in such loan and did pledge as security for the repayment of such loan all or substantially all of the assets of the corporation existing at the time of such pledge other than the items in the balance sheet comprising ‘Total Cash Means.’ “(b) A transaction consummated on or about the 6th day of October, 1932, whereby this corporation transferred to Reconstruction Finance Corporation, pursuant to an instrument of transfer’entered into at that time, certain notes and securities in partial payment of said loan. “(c) A transaction entered into on or about October 6, 1932 whereby pursuant to an agreement between the parties for that purpose City National Bank and Trust Company of Chicago assumed the deposit liabilities of Central Republic Bank and Trust Company against the payment by Central Republic Bank and Trust Company to City National Bank and Trust Company of Chicago of cash funds equal to the deposit liabilities so assumed. “(d) A transaction entered into on or about the 6th day of October, 1932 whereby under an" }, { "docid": "15196466", "title": "", "text": "a prospective period of business recovery. “Furthermore an agreement has been entered into with this new National Bank whereby it will service the administration of the Trust and Real Estate Loan Depart ments of Central Republic Bank and Trust Company upon a basis of divided earnings which is considered equitable. Therefore while the Central Republic Bank and Trust Company ceases to accept further deposits it will continue, with the assistance of the new National Bank, to operate its Trust and Real Estate Loan Departments and collect or realize upon its assets. “Under the terms of the syndicate agreement whereby City National Bank and Trust Company of Chicago was organized, your Directors secured for the stockholders of the Central Republic Bank and Trust Company for sixty days the option to subscribe for the stock of City National Bank and Trust Company at the same price paid by the members of the syndicate—namely $125 per share. Thus in addition to the advantages of the orderly liquidation, the stockholders are also given the privilege of acquiring their proportionate interest in the new bank. “Some suitable form of warrant evidencing the right to subscribe will be forwarded to all stockholders at an early date.” On October 18, 1932, the managers of the original syndicate which originally subscribed for the entire capital of the City National Bank, sent to the stockholders of the defendant bank a notice that under the terms of the syndicate agreement they were entitled to purchase for cash one share of stock in the City National Bank for each 3% shares of defendant bank; that the capital stock of the City National Bank was $4,000,000 with a surplus of $1,-000,000; that the price at which the stockholders were permitted to purchase stock of the City National Bank was $125 per share, the price paid by the syndicate for the shares acquired by it. Certain stockholders of the defendant bank purchased 123 shares of the capital stock of City National Bank. The Central Republic Company subscribed and paid for 11,200 shares of the 40,000 shares of the stock of the City National" }, { "docid": "15196470", "title": "", "text": "agreement entered into between the parties for that purpose City National Bank and Trust Company of Chicago undertook to service the activities of the Real Estate Loan and Trust Departments of Central Republic Bank and Trust Company for a period of three years upon a basis of fifty per cent of the net earnings of such Departments and of the corresponding Departments of City National Bank and Trust Company of Chicago going to City National Bank and Trust Company of Chicago and the remainder thereof going to Central Republic Bank and Trust Company. • “(e) A transaction whereby on or about October 5, 1932 this corporation leased to Central Republic Company, for a term of years, certain space in the building owned by this corporation at 134 South LaSalle Street and assigned to Reconstruction Finance Corporation as security for this corporation’s loan the benefits from time to time accruing to this corporation under such lease. “(f) Transactions consummated on or about October 6, 1932 whereby certain leases in the loop district to Central Republic Bank and Trust Company and/or its predecessors as lessee were canceled. “And do further in all respects ratify, approve and confirm all action of the officers and/or Directors of this corporation incident to or in furtherance of any of the foregoing transactions.” At the same meeting the offer of the City National Bank to modify the contract relating to the servicing by that bank of the real estate loan department and the trust department of defendant bank was modified so that the contract should be terminable at any time on or after six months from its date at the option of the defendant bank upon three months’ notice to the City National Bank of such intended termination. At'the same meeting a resolution was adopted changing the name of defendant bank to Central Republic Trust Company, which change of name was approved by the Auditor of Public Accounts of Illinois, on November 26, 1932. The names of defendants who, as stockholders, voted for or against the resolution approving the transactions with plaintiff and City National Bank &" }, { "docid": "15196443", "title": "", "text": "as shown by the minutes: “In reply to a question as to whether the new bank would purchase paper pledged with the Corporation to the extent of $25,000,000, with the result that the Corporation’s loan would be reduced by that amount, Mr. Clarke replied in the negative, explaining that it had been previously stated that the new bank would purchase $15,000,000 of the paper and that it had also been suggested that other Chicago banks purchase $10,000,000 of the Corporation’s collateral. “Mr. Clarke stated that he did not now believe other banks of Chicago would take any of the paper of the Central Republic Bank and Trust Company, because, in their opinion, such action would be prejudicial to the best interests of the newly organized bank. He further pointed out that since the statement was made that the new bank would purchase $15,000,000 of the paper, there had been payments on it, so that the amount which would be purchased would be approximately $13,000,000. “Mr. Hurd told the Board that, through the organization of the new bank, the Corporation would not lose any of its legal rights to proceed against the stockholders of the old Central Republic Bank and Trust Company in connection with their liability as stockholders. “Mr. Clarke and Mr. Hurd thereupon withdrew. “The Board further considered the questions involved in the liquidation of the Corporation’s loan to the Central Republic Bank and Trust Company, but took no action.” The deposits of defendant bank were as follows: July 25, 1931, $240,746,647.25; June 30, 1932, $112,308,320.76; October 5, 1932, $72,208,817.60. As a result of the disbursement by the plaintiff of $10,000,000 on June 27, 1932, and $60,000,000 on June 29, 1932, to the defendant bank, the cash, including money due from other banks, of the defendant bank, increased from $18,620,916.84 at the close of business on June 25, 1932, to $76,-448,754.62 at the close of business on June 29, 1932. Within those four days the deposits of the bank decreased in an amount in excess of $14,000,000. After the reversal of the second $30,000,000 credit on June 30, 1932," }, { "docid": "15196465", "title": "", "text": "made it apparent that continued operating losses were inescapable and could only result ultimately in forced liquidation. This would have meant a sacrifice of the assets and would -also carry the inherent threat of a stockholders’ liability. “Therefore it was finally concluded that the Central Republic Bank and Trust Company could only be enabled to remain in existence and proceed in orderly liquidation by divesting itself of its deposits and having them assumed by an outside and distinct institution. “The deposits of Central Republic Bank and Trust Company have been taken over and assumed by City National Bank and Trust Company of Chicago, a newly formed bank with fully paid in capital and surplus of $5,000,000 ($4,000,000. capital and $1,000,000 surplus) provided by a syndicate organized for that purpose. “As a collateral result of such action an advantageous settlement of certain other burdensome obligations of the bank was made possible. All of this is obviously in the best interests of the stockholders as it permits a realization of the assets to be made carefully during a prospective period of business recovery. “Furthermore an agreement has been entered into with this new National Bank whereby it will service the administration of the Trust and Real Estate Loan Depart ments of Central Republic Bank and Trust Company upon a basis of divided earnings which is considered equitable. Therefore while the Central Republic Bank and Trust Company ceases to accept further deposits it will continue, with the assistance of the new National Bank, to operate its Trust and Real Estate Loan Departments and collect or realize upon its assets. “Under the terms of the syndicate agreement whereby City National Bank and Trust Company of Chicago was organized, your Directors secured for the stockholders of the Central Republic Bank and Trust Company for sixty days the option to subscribe for the stock of City National Bank and Trust Company at the same price paid by the members of the syndicate—namely $125 per share. Thus in addition to the advantages of the orderly liquidation, the stockholders are also given the privilege of acquiring their proportionate" }, { "docid": "15196487", "title": "", "text": "that in respect of any property belonging to Grantor which Grantor is presently incapable of transferring Grantor will convert or realize upon the same as rapidly as possible and pay over to Grantee from time to time the net proceeds of such conversion or realization.” On July 25, 1931, the National Bank of the Republic of Chicago made the transfer provided for by the aforesaid agreement of July 25, 1931, and as part of the consideration for the assets so transferred, the Chicago Trust Company duly issued. 1,000 new shares of its capital stock to certain trustees for the benefit of the stockholders of the National Bank of the Republic of Chicago. Thereafter, and on July 25, 1931, the respective boards of directors and the stockholders of the Chicago Trust Company and the Central Trust Company of Illinois duly adopted resolutions providing that the Chicago Trust Company and Central Trust Company of Illinois consolidate' to form the Central Republic Bank & Trust Company, the defendant bank herein referred to, in accordance with the banking laws of Illinois. These resolutions all contained the following paragraph: “(k) The Consolidated Corporation (meaning the Central Republic Bank and Trust Company), shall possess and be vested with all of the rights, privileges, powers, franchises, licenses, estate, effects, things in action, moneys, debts due upon whatever account, trusts, and property, real, personal and mixed, of every kind and character of said Chicago Trust Company and said Central Trust Company of Illinois, and shall be subject to all of their respective debts,, liabilities and duties.” On the same day, July 25, 1931, all steps required by the banking laws of Illinois to effect the consolidation of the Chicago Trust' Company and the Central Trust Company of Illinois to form the defendant bank were duly taken by duly authorized persons, and on said day, pursuant to the banking laws of Illinois, the Auditor of Public Accounts of Illinois duly approved said consolidation and issued a certificate authorizing said defendant bank to commence business as a bank or banking association under the banking laws of Illinois. Thereafter, all conditions" }, { "docid": "12523585", "title": "", "text": "fact and discussed at length, in a carefully prepared opinion, and in a manner befitting the importance of the case, the various objections of the different groups. The court covered separately and fully all the issues of fact and disputed legal issues which are here presented. Its findings of fact and opinion appear in Reconstruction Finance Corp. v. Central Republic Trust Co., D.C., 17 F.Supp. at page 263. This discussion greatly simplifies our task and shortens this opinion. We refer to Judge Wilkerson’s findings and opinion for a complete statement of the material facts, as well as of the legal questions involved. In fact, we might well adopt both the findings and the opinion as our own, and thus end this opinion. While inclined so to do, we have hesitated because we would not thus fairly meet the criticisms of them, which are set forth in the exhaustive briefs which have been submitted by the various defendants on these appeals. The importance of the case, as well as .the earnestness and ability with which counsel have pressed their defenses, is our justification for going into the case so fully. The issues: Either collectively, or as a group or groups, defendants deny: 1. The R. F. C,’s authority to sue un-de-r the Act of its creation; 2. The existence of the necessary creditor status to permit it to maintain an action to collect stockholder’s liability; 3. The R. F. C.’s reliance upon the bank stockholder’s liability in making the loan without which no recovery may be had; 4. The R. F. C.’s claim of. .a single loan transaction evidenced by an R. F. C. commitment of $90,000,000; 5. The validity of the reorganization and transfer of assets of the Central Republic Trust. Company to the City National Bank because not approved by the Illinois auditor under section 15 of the Illi- nois Banking Act, Ch. 16%, Smith-Hurd Ill.Rev. Stats.; 6. The validation of the reorganization through ratification by the stockholders; 7. The banking status of the Central Republic Trust Company when it ceased receiving deposits on October 5; 8. The soundness" } ]

[ { "docid": "1090273", "title": "", "text": "right of redemption, and that once the redemption period expires, the Debtors’ interest in the property is terminated. In re Tynan, supra, 773 F.2d at 177. The facts in Tyn-an were analogous to the facts in the instant case. The Tynans were defendants in a mortgage foreclosure proceeding in Cook County, Illinois. A Sheriff’s sale was held on September 20, 1983, pursuant to a judgment of foreclosure. The six month statutory redemption period expired on March 20, 1984. On March 19, 1984, one day before the expiration of the redemption period, the Tynans filed their Chapter 13 petition. On March 21st, the Sheriff issued a Deed to the property to the successful bidder at the Sheriff’s sale. The Tynans then moved to expunge the Deed in Bankruptcy Court, and proposed a Chapter 13 plan to cure the default. The Seventh Circuit first found that 11 U.S.C. Sec. 1322(b)(5), which provides for the curing of a default in a Chapter 13 plan, was inapplicable because there was no default to cure after judgment of foreclosure was entered. Id. at 178. The Court further found that 11 U.S.C. Sec. 362, the automatic stay provision of the Code, does not toll the running of the redemption period. The only extension of time available to debtors is 11 U.S.C. Sec. 108(b), which extends the redemption period for sixty days from the commencement of the bankruptcy proceedings. Most importantly, the Court stated: [ T]he only property interest which the Tynans had in the real estate after the foreclosure sale was the right of redemption. When the Chapter 13 petition was filed, the statutory right of redemption was an asset that passed to the trustee. 4 Collier on Bankruptcy, para. 541.07[3], at 541-31 (15th ed. 1985). The real property sold at the Sheriff’s sale did not become part of the estate. Id. Tynan, supra, 773 F.2d at 179. When neither the Tynans nor the trustee redeemed the property during the extended redemption period, the Court found that the property “vested ‘totally and completely in the foreclosure sale purchaser.’ ” Id. at 179, citing In re Kangas," } ]

[ { "docid": "5998704", "title": "", "text": "section and that is not administered in the case remains property of the estate.”). When a bankruptcy court lifts the automatic stay, it merely removes an injunction barring creditors from bringing suit against the debtor. Catalano v. Commissioner, 279 F.3d 682, 686 (9th Cir. 2002). “Although the property may pass from the control of the estate, that does not mean that the estate’s interest in the property is extinguished.” Id. “Relief from an automatic stay entitles the credi tor to realize its security interest ... in the property, but all proceeds in excess of the creditor’s interest must be returned to the trustee.” Nebel v. Richardson (In re Nebel), 175 B.R. 306, 312 (Bankr.D.Neb. 1994). Because the estate is entitled to any proceeds in excess of the amount owed, id., the estate retains a property interest so long as state law recognizes the underlying property right. Therefore, an order lifting the automatic stay, on its own, does not remove the property from the bankruptcy estate. Notwithstanding this interpretation of federal law, Schropp and Dahlke argue that the foreclosure sale extinguished the estates’ interest in the property under state law, which determines the nature and extent of any property interest. See N.S. Garrott & Sons v. Union Planters Nat’l Bank of Memphis (In re N.S. Garrott & Sons), 772 F.2d 462, 466 (8th Cir.1985). If lifting the automatic stay had extinguished the underlying property interests, it is immaterial that any remaining interests would be part of the estates. Schropp and Dahlke point out that Nebraska law does not provide a debtor the right to cure where notice of default is given and the one-month cure period has expired. Neb.Rev.Stat. § 76-1012. Nor does Nebraska law give a mortgagor a right to redeem property after the foreclosure sale has occurred. Neb.Rev.Stat. § 76-1010(2). Schropp and Dahlke infer from these provisions that a bankruptcy estate has no remaining property interest once a bankruptcy court has ordered a foreclosure sale. We disagree. Prior to the foreclosure sale, the mortgagor retains the right to pay the note in full and retake the property. Because the" }, { "docid": "10194187", "title": "", "text": "readily capable of use. 760 F.2d at 1435. But given the diversity among the states’ property laws, diversity among decisions applying the Code’s cure provisions is a necessary consequence of the Butner doctrine. Butner v. US., 440 U.S. at 54, 99 S.Ct. at 917. The Glenn court’s “pragmatic” approach, yielding a uniform rule, is vulnerable to the same criticisms that led to Butner’s holding. This is particularly true when Glenn is transported to a jurisdiction, such as Maine, where property rights are defined differently. Cure is one thing; resurrection is another. If this court were to adopt Glenn’s formula exactly — if Maine debtors were allowed to cure up until the foreclosure sale — it would be reinstating, or recreating, rights in the real estate after they ceased to exist under state law. Duprey v. Eagle Lake Water & Sewer Dist., 615 A.2d at 605; St. Hilaire v. Berta, 588 A.2d 309, 310 (Me.1991); Martel v. Bearce, 311 A.2d at 543. That would be impermissible under Butner. “No court has held that debtors can use the bankruptcy cure provisions to recover property in which they no longer have any interest under state law.” In re Thompson, 894 F.2d at 1229. I conclude that, under Butner and Maine law, a bright line is crossed when the debtor files his or her petition after the statutory right to redemption expires. My view is similar to that articulated in Raymond: Under Maine foreclosure law, once the redemption period expires, the mortgagor no longer holds a property right which devolves to the estate. Here, the Cormiers’ pending petition was filed after their statutory right of redemption expired. Their bankruptcy estate holds no rights in the real property. Thus, relief from stay will issue. IV. CONCLUSION For the reasons set forth above, Lomas’ motion for relief from the automatic stay under § 362 is granted. A separate order consistent with this opinion will issue forthwith. . This memorandum constitutes findings of fact and conclusions of law as required by F.R.Bankr.P. 7052 and 9014. All references to statutory sections, to the \"Bankruptcy Code\" or to the" }, { "docid": "17585725", "title": "", "text": "mortgagor does not have a right of redemption after foreclosure.”). Thus, even though legal title does not pass to the purchaser until the deed has been recorded, a mortgagor does not have a right of redemption after the gavel has fallen and the memorandum of sale is signed. In this case, because the foreclosure auction took place prior to the petition date, the Debtor no longer had any right of redemption and no legal or equitable interest in the property under New Hampshire law. As the Debtor was divested of all equitable interests in the property as of the petition date, the property was not property of the estate, and he had no ability to cure his defaults under § 1322(c)(1). To interpret the law differently would give the Debtor substantially more legal or equitable rights than he has under state law. Consequently, we conclude that the bankruptcy court erred in its interpretation of § 1322(c)(1), and abused its discretion in denying the Bank’s motion for relief from the automatic stay. CONCLUSION For the reasons set forth above, we REVERSE the bankruptcy court’s order denying the Bank’s motion for relief from the automatic stay, and REMAND to the bankruptcy court for entry of an order granting the Bank’s motion for relief from the automatic stay. . Although the Debtor did not designate the plan as part of the record on appeal, we may take judicial notice of the bankruptcy court’s docket and imaged papers when the parties do not supply a comprehensive record on appeal. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n. 9 (9th Cir. BAP 2003). . Unless expressly stated otherwise, all references to \"Bankruptcy Code\" or to specific statutory sections shall be to the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. § 101, et seq. . As discussed later, In re Beeman involved the question of whether, under § 1322(c)(1), a chapter 13 debtor could cure a default on a mortgage note through his plan when the foreclosure auction occurred prior to the bankruptcy filing, but the seller" }, { "docid": "18425562", "title": "", "text": "Property clearly vested in the Movant pre-petition under Colorado state law. The Tenth Circuit Court of Appeals has said that At the very least, a mortgage debtor must have some legal or equitable interest in property which enters the bank ruptcy estate if he hopes to retain it through the bankruptcy cure provisions. No court has held that debtors can use the bankruptcy cure provisions to recover property in which they no longer have any interest under state law. In re Thompson, 894 F.2d 1227, 1229 (10th Cir.1990) (citations omitted). Because the Debtor’s ownership interest in the Property fully terminated prior to the filing of her bankruptcy petition, cause exists for lifting of the stay. See In re Spencer, 115 B.R. 471, 484-85 (D.Del.1990); In re Haynes, 283 B.R. 147, 155-56 (Bankr.S.D.N.Y.2002); In re Eclair Bakery Ltd., 255 B.R. 121, 136-37 (Bankr.S.D.N.Y.2000); In re Layton, 138 B.R. 219, 224 (Bankr.N.D.Ill.1992); In re Jones, 121 B.R. 122, 124-25 (Bankr.M.D.Fla.1990). Therefore, it is ORDERED that Debtor’s motion to continue these proceedings is DENIED; it is further ORDERED that Debtor’s objection to Movant’s amendment of its Motion is OVERRULED; it is further ORDERED that Debtor’s motion for judgment as a mater of law at the close of Movant’s evidence is DENIED; and it is further ORDERED that the Amended Motion for Relief from Automatic Stay filed by U.S. Bank, National Association, as Trustee, is GRANTED; pursuant to 11 U.S.C. § 362(d), the automatic stay in this case is lifted with respect to the Property legally described as Lot 11, and the North half of Lot 12, Block 26, Downing Addition, City and County of Denver, State of Colorado and commonly known as 2816 Williams Street, Denver, Colorado 80205, so that the Movant may proceed with its eviction action. . The witnesses testimony on this point was not helpful to the Court because she did not participate in or witness the indorsements. Furthermore, it is the Court’s function to interpret documents which are entered into evidence. . Here, the Movant’s counsel created a good deal of the confusion by initially filing the Motion for" }, { "docid": "18523553", "title": "", "text": "same principle applied in Maxwell mandates the result here: if the Debtor’s rights in the property have been validly terminated prior to bankruptcy, there is nothing left post-petition to reinstate or revive. Similarly, a defaulting mortgagor’s equitable interest and redemption rights under a foreclosed mortgage that has proceeded to sale under the Illinois mortgage foreclosure law, has been held to terminate a mortgagor’s equity of redemption which cannot be reinstated through a Chapter 13 reorganization. See In re Josephs, 93 B.R. 151 (N.D.Ill.1988). The result reached here, which follows Jones, logically compliments Maxwell and Josephs: that property interest of a debtor which has been properly terminated pre-petition, cannot be resuscitated post-petition. After filing bankruptcy, the Debtor retains a bare possesso-ry interest in the premises which she has continued to occupy through these proceedings, via the effective benefits of the automatic stay. Thus, the only remaining issues are those under section 362(d) pursuant to In re Vitreous Steel Products Co., 911 F.2d 1223 (7th Cir.1990). The critical issues on stay modification requests are adequacy of protection, equity in the property, and necessity to an effective reorganization. Under section 362(g)(1), the only issue on which VA has the burden of proof is the Debtor’s equity in the property. From the foregoing facts and law, it is clear that the Debtor has no remaining equity in the property. Consequently, VA has met its burden of proof. Under section 362(g)(2), the Debtor, being the party opposing the stay relief, has the burden of proof on all other issues. Because she has no remaining equitable interest in the property, other than a bare possessory interest, and VA properly declared its forfeiture approximately six months before this Chapter 13 petition was filed, cause has been shown to modify the automatic stay pursuant to section 362(d)(1). The Debtor can attempt to deal with her other creditors in the context of this Chapter 13 case through an amended plan, if she so chooses. Dismissal at this stage of the case is premature and hence is denied. IV. CONCLUSION For the foregoing reasons, the Court allows VA’s motion to" }, { "docid": "15395398", "title": "", "text": "be liberally construed to suspend the running of a statutory period of redemption. Other decisions, holding to the contrary with respect to § 362(a), have instead found that § 108(b) is the sole applicable statute, and that its automatic extension of a redemption period provides the only relief available. See, e.g., In Re Martinson, supra; In Re Ecklund & Swedlund Development Corp., 17 B.R. 451 (Bkrtcy.D.Minn.1981); In Re Owens, 27 B.R. 946 (Bkrtcy.E.D.Mich. 1983). We conclude that the latter group of cases more accurately construe the lan guage and legislative history of the two sections. Preliminary to an examination of § 362(a), it is important to identify the debtors’ remaining interest in mortgaged property following a foreclosure sale, and to determine whether that interest constitutes property of the bankruptcy estate. It is long-settled under Minnesota law that foreclosure extinguishes the mortgage and that the purchaser at the foreclosure sale acquires a vested right to become the absolute owner of the property upon expiration of the redemption period, or, in lieu thereof, to receive the payment of the purchase price plus interest. In Re Klein, 9 F.Supp. 57, 59 (D.Minn.1934); In Re Stacy, 9 F.Supp. 61, 64 (D.Minn.1934), and cases cited therein. The mortgagor, on the other hand, retains only the equity of redemption, plus the rights to possession, rents, and profits of the property during the period of redemption. Id. Accordingly, it is only the right of redemption, rather than the property itself, which passes into the bankruptcy estate if the redemption period has not expired at the time of the bankruptcy petition is filed. (4 Collier on Bankruptcy ¶ 541.-07[3]) at 541-30 (15th ed. 1983). Section 362(a) prohibits the “commencement or continuation ... of a judicial, administrative, or other proceeding,” the “enforcement” of a judgment obtained prior to bankruptcy, or any other “act” to obtain possession of property of the estate or to create, perfect, or enforce any lien against property of the estate. The fundamental purposes of the automatic stay imposed by § 362(a) against such actions are two-fold: to provide the debtor with a breathing spell from" }, { "docid": "18549998", "title": "", "text": "be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.”). In some states, the mortgagor’s interest terminates on the date of entry of a judgment of foreclosure, while in other states it terminates upon the expiration of the redemption right prior to foreclosure. In still other states, the mortgagor’s interest terminates at the time of the foreclosure sale. Some states, however, permit a right of redemption following the foreclosure sale. Depending on state law, many courts have held that the debt cannot be decelerated nor the arrearage cured after the foreclosure sale. Federal Land Bank of Louisville v. Glenn (In re Glenn), 760 F.2d 1428 (6th Cir.1985); Oregon v. Hurt (In re Hurt), 158 B.R. 154 (9th Cir. BAP 1993); In re Gordon, 161 B.R. 459 (Bankr.E.D.Ark.1993); Leggett v. Morgan (In re Morgan), 115 B.R. 399 (Bankr.M.D.Ga.1990); In re Westmore, 75 B.R. 110 (Bankr.N.D.Fla.1987). Likewise, in the State of Alabama, considerable debate over this issue has occurred and two divergent lines of authority have developed. See M. Donald Davis, Jr., Real Estate Mortgages and Chapter 13 Bankruptcy Practice in Alabama—Current Overview and Practice Suggestions, 52 Ala. Lawyer 174, 175 (May 1995); Brannon D. Anthony, Stream of Commerce, Winter Ed. 1995, p. 3. The courts agree that at some point in the foreclosure process the default can no longer be cured; however the courts disagree as to the point in time at which the right to cure ends under 11 U.S.C. Section 1322(b). For the sake of classification, the two views will be called by the case name which clearly sets forth the analysis for each particular view in Alabama, i.e., the Ragsdale analysis and the McKinney analysis. A. Ragsdale Analysis Chief Judge Mitchell concluded that cure is available until a debtor is completely divested of all rights in property. In re Ragsdale, 155 B.R. 578, 586 (Bankr.N.D.Ala.1993). See also Commercial Federal Mortgage Corporation v. Smith, 170 B.R. 708 (N.D.Ala.1994) (Judge Hancock expressly adopts the analysis and holding of Ragsdale), appeal docketed, No. 94-6802 (11th Cir. Aug. 26, 1994); Fleet Mortgage Corporation v. Shaw, 171 B.R. 129" }, { "docid": "18551031", "title": "", "text": "creditor holding a lien in bankruptcy. In re Milne, 185 B.R. 277, 279 (Bankr.N.D.Ill.1995), aff'd, Milne v. Johnson (In re Milne), 185 B.R. 280 (N.D.Ill.1995) (Reinhard, J.). His reasoning was that “[t]he characterization of Certificate of Sale as a lien, combined with the Code’s definition of claim leaves no doubt that the tax purchaser ... is in fact a creditor in bankruptcy.” Id. at 279. Therefore, he found that the automatic stay must be modified before the creditor was allowed to file for a tax deed in state court. Id. In McRoberts v. S.I.V.I. (In re Bequette), 184 B.R. 327 (Bankr.S.D.Ill.1995), Judge Meyers, citing Illinois authorities, agreed with the view that issuance of a Certificate of Purchase at a tax sale “does not affect the delinquent property owner’s legal or equitable title to the property, which remains with the owner.” Id. at 336 (citations omitted). Consequently, he concluded that [i]f a bankruptcy intervenes during the running of the redemption period, the automatic stay prevents any action by the tax purchaser to divest the delinquent property owner of an interest in the property. In re Bequette, 184 B.R. at 336. Judge Plunkett reversed Judge Ginsberg’s holding in In re Lucille Jackson, finding that under Illinois law a Certificate of Purchase conveys an ownership interest in the property, not merely a lien. Jackson v. Midwest Partnership (In re Jackson), 176 B.R. 156 (N.D.Ill.1994). He reasoned that the automatic stay does not apply to a petition for a tax deed since § 362(b) of the Bankruptcy Code exempts from the automatic stay interests in property which could be perfected under state law against the debtor. Id. at 157. Alternatively, Judge Plunkett also applied the rationale of In re Tynan, 773 F.2d 177, 179 (7th Cir.1985). He concluded that under the Illinois Property Tax Code, as under the Illinois Mortgage Foreclosure Act, after the redemption period expires, debtor’s estate loses any interest in the property and a petition for a tax deed at that time does not violate the automatic stay. Jackson v. Midwest Partnership (In re Jackson), 176 B.R. at 157. Judge Plunkett’s" }, { "docid": "13577781", "title": "", "text": "chapter.” Dever v. Internal Revenue Service (In re Dever), 164 B.R. 132, 133 (Bankr.C.D.Cal.1994); see also In re Jones, 152 B.R. at 173-74 (discussing congressional intent to permit hen stripping in chapter 11, as demonstrated by legislative history); In re Butler, 139 B.R. 258, 259 (Bankr.E.D.Okla.1992) (holding that application of Dewsnup to reorganization case would “gut the sum and substance of the reorganization and rehabilitation of debt concept[s]”). Creditor also argues that Congress’ special concern for home mortgage lenders, as evidenced by the chapter 13 provision discussed in Nobelman, should prevent bifurcation of home mortgages in chapter 11 as well. The problem with this argument is that there is absolutely no language in chapter 11 evidencing an intent to afford home mortgage lenders such special treatment. Whereas § 1322(b)(2) expressly prohibits modification of the rights of home mortgage lenders, chapter 11 does not contain a comparable provision. We are without authority to “judicially expand the congressional purpose ‘in singling out home mortgages in the Chapter 13 provisions’ to include Chapter 11.” In re Kennedy, 158 B.R. 589, 595-96 (Bankr. D.N.J.1993) (quoting In re Smith, 156 B.R. 11, 13-14 (Bankr.D.N.J.1993)). Creditor argues that the bankruptcy court was without authority to modify his state law right to foreclose on the debtors’ property and urges us to reverse Jim Walter Homes v. Spears (In re Thompson), 894 F.2d 1227 (10th Cir.1990). In In re Thompson, we held that the debtor’s right to redeem real property before a foreclosure sale gave the estate a sufficient interest in the property to allow it to cure the default, even after a foreclosure judgment was obtained. Id. at 1230-31. We see no reason to modify this rule. ■ In any event, the bankruptcy court is authorized to modify a creditor’s state law property rights through a chapter 11 reorganization plan. See, e.g., 11 U.S.C. § 1123(a)(5)(E) (debtor’s right to satisfy or modify a lien); 11 U.S.C. § 1123(b)(1) (debt- or’s right to impair both secured and unsecured claims); see also In re Kennedy, 158 B.R. at 596 (concluding that the Code authorizes a chapter 11 debtor to" }, { "docid": "2654456", "title": "", "text": "that “Congress evidenced its intent to provide additional relief for defaulting mortgagors only as long as the contractual relationship continues, and to allow state law to control when the relationship is dissolved.” Justice, 849 F.2d at 1085. Interpreting South Dakota law, the court found that the mortgage contract was extinguished after both the foreclosure judgment and the sale. Justice, 849 F.2d at 1084 (citing American Fed. Sav. & Loan Ass’n v. Kass, 320 N.W.2d 800, 804 (S.D.1982)). The Third Circuit determined that the cure provisions expire when the mortgagee obtains a foreclosure judgment. In re Roach, 824 F.2d 1370, 1377 (3d Cir.1987). The Roach court concluded that “after the entry of a foreclosure judgment, no contractual relationship remains and the mortgagee’s rights are those that arise from its judgment.” Roach, 824 F.2d at 1377. Interpreting New Jersey law, the court found that “the mortgage is merged into final judgment of foreclosure and the mortgage contract is extinguished.” Roach, 824 F.2d at 1377 (citing Colonial Bldg. Loan Ass’n v. Mongiello Bros., 184 A. 635, 637-38 (N.J.Ch.1936)). C. The Estate Theory The Tenth Circuit recently developed the “estate” theory. The estate theory cuts off the debtors right to cure under § 1322(b)(5) at the foreclosure sale. In re Thompson, 894 F.2d 1227, 1229-31 (10th Cir.1990). The Thompson court began its analysis stating that “[a] more useful starting point would seem to be the concept of property of the bankruptcy estate.” Thompson, 894 F.2d at 1229 (citing 11 U.S.C. § 541). Sections 541 and 1306 are the logical starting points because “a mortgage debtor must have some legal or equitable interest in property which enters the bankruptcy estate if he hopes to retain it through the bankruptcy cure provisions.” Thompson, 894 F.2d at 1229 (citing Clark, 738 F.2d at 871). However, Thompson did not focus on state mortgage law to determine the interests of the debtor in the property. See, Clark, 738 F.2d at 871 (the Seventh Circuit state-law theory). The Thompson court stated that “[t]he right to cure in bankruptcy should resemble its state law analogue, but should not be stifled by" }, { "docid": "18523552", "title": "", "text": "of paragraph 15 and 17 of the Contract are clear and unequivocal. VA properly declared the Contract forfeited and terminated in accordance with its terms, and was not required to first seek a court determination to that effect before same became effective. The result here involving a contract for deed relationship between a debtor and a creditor is analogous to and consistent with the results in other bankruptcy reorganization cases decided in this district wherein other debtors have had less than a full fee simple title to the underlying real property. The leading Chapter 11 decision dealing with the rights of debtor-tenants under leases of real property is In re Maxwell, 40 B.R. 231 (N.D.Ill.1984), which held that where a tenant’s leasehold interest under Illinois law had been properly terminated pre-petition, there was no remaining unexpired lease to assume post-petition under section 365 and save through a reorganization proceeding. Although the Debtor correctly contends Maxwell is not controlling and argues that a contract purchaser has a greater “bundle of sticks” than a mere tenant, the same principle applied in Maxwell mandates the result here: if the Debtor’s rights in the property have been validly terminated prior to bankruptcy, there is nothing left post-petition to reinstate or revive. Similarly, a defaulting mortgagor’s equitable interest and redemption rights under a foreclosed mortgage that has proceeded to sale under the Illinois mortgage foreclosure law, has been held to terminate a mortgagor’s equity of redemption which cannot be reinstated through a Chapter 13 reorganization. See In re Josephs, 93 B.R. 151 (N.D.Ill.1988). The result reached here, which follows Jones, logically compliments Maxwell and Josephs: that property interest of a debtor which has been properly terminated pre-petition, cannot be resuscitated post-petition. After filing bankruptcy, the Debtor retains a bare possesso-ry interest in the premises which she has continued to occupy through these proceedings, via the effective benefits of the automatic stay. Thus, the only remaining issues are those under section 362(d) pursuant to In re Vitreous Steel Products Co., 911 F.2d 1223 (7th Cir.1990). The critical issues on stay modification requests are adequacy of protection," }, { "docid": "18549997", "title": "", "text": "as the foreclosure has not occurred. However, considerable debate occurred nationally over the critical point during the pre-petition foreclosure process when a debtor could no longer reinstate and cure a mortgage under 11 U.S.C. Section 1322(b)(2), (3) or (5). E.g., In re Ragsdale, 155 B.R. 578, 581-582 (Bankr.N.D.Ala.1993) (Chief Judge Mitchell collects and cites cases from each Circuit which has dealt with this issue.). The difficulty is that state law determines when the interest of a mortgagor is terminated. See In re McKinney, 174 B.R. 330, 333 (Bankr.S.D.Ala.1994) (“There is no federal foreclosure law and therefore the court’s starting point in determining a mortgagor’s status vis á vis a foreclosed mortgage is state law.... Alabama foreclosure law controls the rights of mortgagors and mortgagees unless clearly and manifestly displaced by federal law.”). See also Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979) (“Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.”). In some states, the mortgagor’s interest terminates on the date of entry of a judgment of foreclosure, while in other states it terminates upon the expiration of the redemption right prior to foreclosure. In still other states, the mortgagor’s interest terminates at the time of the foreclosure sale. Some states, however, permit a right of redemption following the foreclosure sale. Depending on state law, many courts have held that the debt cannot be decelerated nor the arrearage cured after the foreclosure sale. Federal Land Bank of Louisville v. Glenn (In re Glenn), 760 F.2d 1428 (6th Cir.1985); Oregon v. Hurt (In re Hurt), 158 B.R. 154 (9th Cir. BAP 1993); In re Gordon, 161 B.R. 459 (Bankr.E.D.Ark.1993); Leggett v. Morgan (In re Morgan), 115 B.R. 399 (Bankr.M.D.Ga.1990); In re Westmore, 75 B.R. 110 (Bankr.N.D.Fla.1987). Likewise, in the State of Alabama, considerable debate over this issue has occurred and two divergent lines of authority have developed. See M. Donald Davis, Jr., Real" }, { "docid": "4769374", "title": "", "text": "in the absence of any express statutory guidance. These decisions are collected and discussed in In re Hurt, 158 B.R. 154, 156-58 (9th Cir. BAP 1993). As noted in Hurt, the courts developed a number of different rationales for establishing a cutoff of the right to cure. The Seventh Circuit’s decisions—In re Clark, 738 F.2d 869, 871 (7th Cir.1984) (applying Wisconsin law); and In re Tynan, 773 F.2d 177 (7th Cir.1985) (applying pre-IMFL Illinois law) — employed state law to determine the cutoff point, and established that the right to cure “is extinguished when the foreclosure process reaches a point at which the pre-foreclosure relationship between the mortgagor and mortgagee has ended, so that it can be said that the mortgagor’s title has effectively been transferred and that there is no longer any mortgage to cure.” In re Josephs, 85 B.R. 500, 504 (Bankr.N.D.Ill.), aff'd, 93 B.R. 151. (N.D.Ill.1988). In Josephs, 85 B.R. at 506, this court held that, under the IMFL, this point was reached at the time of the foreclosure sale, a holding later adopted in In re Beaty, 116 B.R. 112 (Bankr.N.D.Ill.1990). Employing differing rationales, other circuits also concluded that a foreclosure sale marked the cutoff of the right to cure a mortgage default. In re Thompson, 894 F.2d 1227, 1229 (10th Cir.1990) (rejecting state law as governing, and basing decision on the concept of “property of the estate” under the Bankruptcy Code); In re Glenn, 760 F.2d 1428, 1435-36 (6th Cir.1985) (basing decision on “pragmatic” considerations); cf. Justice v. Valley Nat’l Bank, 849 F.2d 1078, 1085 (8th Cir.1988) (interpreting a parallel provision in Chapter 12 to allow for cure of mortgages until the “contractual relationship” between the parties ends, as determined by state law). All of these decisions, made it clear that by “foreclosure sale,” they meant the event (usually an auction) through which a third party may acquire an ownership interest in the debtor’s property, even though title may not actually pass at that point. Thus, in Tynan, 773 F.2d at 178, and Justice, 849 F.2d at 1084, the debtor retained a right to redeem" }, { "docid": "4769375", "title": "", "text": "later adopted in In re Beaty, 116 B.R. 112 (Bankr.N.D.Ill.1990). Employing differing rationales, other circuits also concluded that a foreclosure sale marked the cutoff of the right to cure a mortgage default. In re Thompson, 894 F.2d 1227, 1229 (10th Cir.1990) (rejecting state law as governing, and basing decision on the concept of “property of the estate” under the Bankruptcy Code); In re Glenn, 760 F.2d 1428, 1435-36 (6th Cir.1985) (basing decision on “pragmatic” considerations); cf. Justice v. Valley Nat’l Bank, 849 F.2d 1078, 1085 (8th Cir.1988) (interpreting a parallel provision in Chapter 12 to allow for cure of mortgages until the “contractual relationship” between the parties ends, as determined by state law). All of these decisions, made it clear that by “foreclosure sale,” they meant the event (usually an auction) through which a third party may acquire an ownership interest in the debtor’s property, even though title may not actually pass at that point. Thus, in Tynan, 773 F.2d at 178, and Justice, 849 F.2d at 1084, the debtor retained a right to redeem the property after such a sale, so there was no immediate passing of title, but the sale itself was sufficient to terminate the relationship that had previously existed between the debtor and the mortgagee and preclude a cure under the Bankruptcy Code. In Thompson, 894 F.2d at 1230, and Glenn, 760 F.2d at 1435, the courts pointed to the fact that the “foreclosure sale” potentially introduced a third party — the foreclosure purchaser — into what had previously been a relationship exclusively between the debtor and the mortgagee. Glenn went on to note that setting the cutoff date later than the time of the “foreclosure sale” on the debtor’s property “brings with it the very serious danger that bidding at the sale ... will be chilled.” 760 F.2d at 1436. The Ninth Circuit Bankruptcy Appellate Panel, in Hurt, similarly held that the foreclosure sale — understood as the event allowing third-party purchase of the debtor’s property — should be the cutoff point for a cure of mortgage ar-rearages. 158 B.R. at 160 (“The foreclosure sale" }, { "docid": "13577782", "title": "", "text": "B.R. 589, 595-96 (Bankr. D.N.J.1993) (quoting In re Smith, 156 B.R. 11, 13-14 (Bankr.D.N.J.1993)). Creditor argues that the bankruptcy court was without authority to modify his state law right to foreclose on the debtors’ property and urges us to reverse Jim Walter Homes v. Spears (In re Thompson), 894 F.2d 1227 (10th Cir.1990). In In re Thompson, we held that the debtor’s right to redeem real property before a foreclosure sale gave the estate a sufficient interest in the property to allow it to cure the default, even after a foreclosure judgment was obtained. Id. at 1230-31. We see no reason to modify this rule. ■ In any event, the bankruptcy court is authorized to modify a creditor’s state law property rights through a chapter 11 reorganization plan. See, e.g., 11 U.S.C. § 1123(a)(5)(E) (debtor’s right to satisfy or modify a lien); 11 U.S.C. § 1123(b)(1) (debt- or’s right to impair both secured and unsecured claims); see also In re Kennedy, 158 B.R. at 596 (concluding that the Code authorizes a chapter 11 debtor to “alter the legal rights of a home mortgage lender who holds a foreclosure judgment against his residence”). Thus, there was no error in modifying creditor’s right to foreclose on debtors’ property, even after a foreclosure judgment was obtained. Creditor next argues that the bankruptcy court erred in approving the use of the eight percent market interest rate rather than the contract interest rate of ten percent. In Hardzog v. Federal Land Bank (In re Hardzog), 901 F.2d 858 (10th Cir.1990), we held that “in the absence of special circumstances, such as the market rate being higher than the contract rate, Bankruptcy Courts should use the current market rate of interest used for similar loans in the region.” Id. at 860 (footnote omitted). Here, the bankruptcy court found that no special circumstances existed to justify departure from the prevailing market rate, and creditor has not identified any such special circumstances on appeal. Therefore, the bankruptcy court did not err in complying with the requirements of Hardzog. Creditor argues that because he was involved in lending for" }, { "docid": "18551032", "title": "", "text": "owner of an interest in the property. In re Bequette, 184 B.R. at 336. Judge Plunkett reversed Judge Ginsberg’s holding in In re Lucille Jackson, finding that under Illinois law a Certificate of Purchase conveys an ownership interest in the property, not merely a lien. Jackson v. Midwest Partnership (In re Jackson), 176 B.R. 156 (N.D.Ill.1994). He reasoned that the automatic stay does not apply to a petition for a tax deed since § 362(b) of the Bankruptcy Code exempts from the automatic stay interests in property which could be perfected under state law against the debtor. Id. at 157. Alternatively, Judge Plunkett also applied the rationale of In re Tynan, 773 F.2d 177, 179 (7th Cir.1985). He concluded that under the Illinois Property Tax Code, as under the Illinois Mortgage Foreclosure Act, after the redemption period expires, debtor’s estate loses any interest in the property and a petition for a tax deed at that time does not violate the automatic stay. Jackson v. Midwest Partnership (In re Jackson), 176 B.R. at 157. Judge Plunkett’s reasoning in Jackson v. Midwest Partnership (In re Jackson), 176 B.R. 156 (N.D.Ill.1994), should not be followed. The weight of state and bankruptcy court decisions as cited by Judge Ginsberg suggests that in Illinois a tax sale resulting in issuance of a Certificate of Purchase does not affect the delinquent property owner’s legal or equitable title to the property. Legal and equitable title remains with the owner, but gives the tax purchaser the right to receive payment if the property is redeemed within the redemption period and to receive title if there is no timely redemption. Until the redemption period expires, the owner can retain title by redeeming. After that period ends, title is lost. Thus, in this case, during the redemption period, the property remained that of the Debtor and was property of the estate protected by the stay when Debtor filed his second bankruptcy on May 25,1995. Judge Plunkett was faced with the issue of whether a Certificate of Purchase acquired before the bankruptcy petition may be converted into a tax deed through" }, { "docid": "2654457", "title": "", "text": "C. The Estate Theory The Tenth Circuit recently developed the “estate” theory. The estate theory cuts off the debtors right to cure under § 1322(b)(5) at the foreclosure sale. In re Thompson, 894 F.2d 1227, 1229-31 (10th Cir.1990). The Thompson court began its analysis stating that “[a] more useful starting point would seem to be the concept of property of the bankruptcy estate.” Thompson, 894 F.2d at 1229 (citing 11 U.S.C. § 541). Sections 541 and 1306 are the logical starting points because “a mortgage debtor must have some legal or equitable interest in property which enters the bankruptcy estate if he hopes to retain it through the bankruptcy cure provisions.” Thompson, 894 F.2d at 1229 (citing Clark, 738 F.2d at 871). However, Thompson did not focus on state mortgage law to determine the interests of the debtor in the property. See, Clark, 738 F.2d at 871 (the Seventh Circuit state-law theory). The Thompson court stated that “[t]he right to cure in bankruptcy should resemble its state law analogue, but should not be stifled by archaic property and mortgage law concepts.” Thompson, 894 F.2d at 1231. Apparently all of the states permit equitable redemption of property up until the foreclosure sale and approximately half of the states permit statutory redemption after the foreclosure sale. Thompson, 894 F.2d at 1280 (citing Real Estate Finance Law § 7.1 at 478-479). The Thompson court concluded that these redemptive interests were part of the bankruptcy estate stating that “[t]he concept of property of the bankruptcy estate is broad enough to include statutory or equitable rights of redemption.” Thompson, 894 F.2d at 1230 (citing 4 Collier on Bankruptcy, H 541.-07[S]). Although this analysis implies that Thompson supports the right to cure beyond the foreclosure sale, the court nevertheless established the foreclosure sale as the cutoff point for two primary reasons. Thompson, 894 F.2d at 1230-1231. First, the foreclosure sale introduces a third party into the equation. Specifically, the good faith purchaser at the foreclosure sale. “Purchase by an independent third party at a foreclosure sale raises enough additional concerns to justify ending the right to" }, { "docid": "10187009", "title": "", "text": "stated, as the reason why there was no mortgage default to cure, that the purchaser at the foreclosure sale “satisfied the debt which the [mortgagors] owed to the bank that had made the mortgage loan upon the property.” 773 F.2d at 178. Moreover, Tynan distinguished Clark, not only because it involved Wisconsin law, but also because, in Clark, “no foreclosure sale had occurred before the Chapter 13 petition was filed.” 773 F.2d at 179 n. 2. Thus it is not clear whether Tynan viewed the judgment of foreclosure or the foreclosure sale as the cutoff point of a debtor’s option to cure a mortgage default under chapter 13. However, two points do clearly emerge from Clark and Tynan. The first is that, in this circuit, the cutoff point for the right to cure a mortgage default under Section 1322(b)(5) varies according to the particular state mortgage law involved; there can be no designation of a cutoff point applicable to all foreclosure proceedings. In this respect, the Seventh Circuit’s holdings contrast with the decision of the Sixth Circuit in In re Glenn, 760 F.2d 1428, 1435-36 (6th Cir.), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985), which adopts, for all states within that circuit, a rule that Chapter 13 debtors may propose to cure mortgage defaults unless there was a foreclosure sale before they filed their bankruptcy petitions. The second point that emerges from Clark and Tynan is that a debtor’s right to cure a mortgage default under Section 1322(b)(5) is extinguished when the foreclosure process reaches a point at which the pre-foreclosure relationship between the mortgagor and mortgagee has ended, so that it can be said that the mortgagor’s title has effectively been transferred and that there is no longer any mortgage to cure. Applying these principles to the present case requires an analysis of the manner in which the current Illinois foreclosure law, the IMFL, affects a mortgagor’s interest in property at each of the major steps in the foreclosure process: (1) filing and service of the foreclosure complaint; (2) entry of the judgment of" }, { "docid": "10194188", "title": "", "text": "the bankruptcy cure provisions to recover property in which they no longer have any interest under state law.” In re Thompson, 894 F.2d at 1229. I conclude that, under Butner and Maine law, a bright line is crossed when the debtor files his or her petition after the statutory right to redemption expires. My view is similar to that articulated in Raymond: Under Maine foreclosure law, once the redemption period expires, the mortgagor no longer holds a property right which devolves to the estate. Here, the Cormiers’ pending petition was filed after their statutory right of redemption expired. Their bankruptcy estate holds no rights in the real property. Thus, relief from stay will issue. IV. CONCLUSION For the reasons set forth above, Lomas’ motion for relief from the automatic stay under § 362 is granted. A separate order consistent with this opinion will issue forthwith. . This memorandum constitutes findings of fact and conclusions of law as required by F.R.Bankr.P. 7052 and 9014. All references to statutory sections, to the \"Bankruptcy Code\" or to the \"Code” are to the Bankruptcy Reform Act of 1978, as amended, codified at 11 U.S.C. 101 et seq. (1992). . The material facts of the case are not in dispute. They are drawn from the submissions of the parties, including the uncontroverted allegations in Lomas’ motion seeking dismissal or relief from stay. At hearings, Mrs. Cormier alleged that she and her husband had valid defenses to Lomas' action on the promissory note secured by the residential mortgage. However, the note and mortgage are the basis for a valid, final state court judgment. Such defenses as may once have existed are now foreclosed. An extensive package of materials was filed by the Cormiers well after the briefing period closed. It has been accepted and considered nonetheless. It contains nothing that would change today’s decision. .The mortgage originally issued in favor of Comfed Mortgage Co. Comfed Mortgage assigned the mortgage to Comfed Savings Bank on November 15, 1985. The Resolution Trust Corp. (\"RTC\") was appointed as conservator for Comfed Bank on December 14, 1990, and as receiver" }, { "docid": "18425561", "title": "", "text": "§ 362(d)(2), the Movant’s deed to the Property is sufficient to demonstrate to the Court that the Debtor has no equity in the Property. Moreover, the Debtor submitted no evidence to the Court from which it could find that the Property is necessary for an effective reorganization. Indeed, it is difficult for this Court to imagine what evidence the Debtor might have provided to demonstrate that a home, in which the Debtor holds no ownership interest, could be necessary to the Debtor’s reorganization effort. It is much more likely that the Debtor’s reorganization can be successful if the Debtor is simply paying rent rather than trying to cure a mortgage deficiency and make current payments on a mortgage debt, which the Debtor testified is greater than the value of the Property. Furthermore, Movant has shown that cause exists for the lifting of the automatic stay under § 362(d)(1). The Debtor’s interest in the property is an interest based only on bare possession. She has no ownership interest in the Property. Fee simple ownership of the Property clearly vested in the Movant pre-petition under Colorado state law. The Tenth Circuit Court of Appeals has said that At the very least, a mortgage debtor must have some legal or equitable interest in property which enters the bank ruptcy estate if he hopes to retain it through the bankruptcy cure provisions. No court has held that debtors can use the bankruptcy cure provisions to recover property in which they no longer have any interest under state law. In re Thompson, 894 F.2d 1227, 1229 (10th Cir.1990) (citations omitted). Because the Debtor’s ownership interest in the Property fully terminated prior to the filing of her bankruptcy petition, cause exists for lifting of the stay. See In re Spencer, 115 B.R. 471, 484-85 (D.Del.1990); In re Haynes, 283 B.R. 147, 155-56 (Bankr.S.D.N.Y.2002); In re Eclair Bakery Ltd., 255 B.R. 121, 136-37 (Bankr.S.D.N.Y.2000); In re Layton, 138 B.R. 219, 224 (Bankr.N.D.Ill.1992); In re Jones, 121 B.R. 122, 124-25 (Bankr.M.D.Fla.1990). Therefore, it is ORDERED that Debtor’s motion to continue these proceedings is DENIED; it is further ORDERED" } ]

[ { "docid": "15771570", "title": "", "text": "PER CURIAM: Richard Halfacre was charged in a two count indictment with (1) engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. §§ 922(a)(1), 924(a); and, (2) selling, transferring or delivering a firearm without a license to a person whom he knew lived in another state. 18 U.S.C. §§ 922(a)(5) and 924(a). Pursuant to a plea agreement, Halfacre was convicted of the first count, and the second count was dismissed. In the plea agreement, Halfacre specifically reserved his right to appeal certain nonjurisdictional issues. It is obvious that Halfacre’s guilty plea was intimately tied to the reservation of his right to appeal. In United States v. Sepe, 5 Cir. 1973, 486 F.2d 1044 (en banc), this Court expressed its disapproval of this type of plea agreement. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Following Sepe, this Court in United States v. Mizell, 5 Cir. 1973, 488 F.2d 97, vacated a conviction pursuant to a similar plea agreement, to allow the defendant to plead anew. Although this Court reached a different result in United States v. Fernandez, 5 Cir. 1977, 556 F.2d 1246, Fernandez involved a distinguishable fact situation; and thus, Mizell dictates the preferred remedy. The conviction is therefore vacated, and this case is remanded to the district court to allow the defendant to plead anew. VACATED and REMANDED." } ]

[ { "docid": "18007573", "title": "", "text": "PER CURIAM: In May, 1976, the appellant was indicted for conspiracy to possess, with intent to distribute, cocaine and heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In June, 1976, the District Court for the Northern District of Georgia issued a writ of habeas corpus ad prosequendum, directing that the appellant be brought from prison in California to Georgia for arraignment. He was brought to Georgia and pled not guilty on June 28, 1976. On November 23, 1976, the appellant moved to dismiss the indictment, on grounds that his trial had not commenced within 120 days of June 28, contrary to the mandate of the Interstate Agreement on Detainers Act, 18 U.S.C.App. § 2. The motion was denied on the grounds that the above writ was not subject to the provisions of the Act. Following the ruling, the appellant changed his plea to guilty. The lower court approved an agreement to permit the present appeal over the applicability of the Act to the writ of habeas corpus ad prosequendum. The issue raised is an unsettled one, see United States v. Mauro, 2 Cir. 1976, 544 F.2d 588, cert. granted, - U.S. -, 98 S.Ct. 53, 54 L.Ed.2d 71; United States v. Scallion, 5 Cir. 1977, 548 F.2d 1168, petition for cert. pending, No. 76-6659. However, a threshold issue is dispositive of this case. We disapprove the practice of accepting a guilty or nolo contendere plea coupled with a court-approved agreement that a defendant may nevertheless appeal on non jurisdictional grounds. United States v. Sepe, 5 Cir. 1973, 486 F.2d 1044 (en banc). While a guilty plea does not bar an appeal that asserts that the indictment failed to state an offense, or that the charge is unconstitutional, or that the indictment showed on its face that it was barred by the statute of limitations, Sepe, at 1045, none of these grounds for appeal are available in the instant case. As this Court suggested in United States v. Mizell, 5 Cir. 1973, 488 F.2d 97, a guilty plea induced by a court-approved promise that could not" }, { "docid": "11070711", "title": "", "text": "GEE, Circuit Judge: This case presents an appeal of a denial of a motion to suppress and motion to divulge the identity of a confidential informant. The more important aspect of the case is that these issues are non-jurisdictional and were pursued after the defendant entered a plea of nolo contendere. In United States v. Sepe, 486 F.2d 1044 (5th Cir. 1973) (en banc), the en bane court said in unequivocal terms: [A]s a matter of policy this court disapproves the practice of accepting pleas of guilty or nolo contendere if they are coupled with agreements that the defendant may nevertheless appeal on nonjurisdictional grounds. We repeat this admonition: prosecutors and district courts are reminded of our statement in Sepe and the district courts are directed to cease receiving pleas so conditioned. Nevertheless, in light of the isolated incidence of this violation and the substantial expenditure of effort on the part of all the parties concerned with this case, we proceed to the merits. AFFIRMED pursuant to Local Rule 21. . See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966." }, { "docid": "897139", "title": "", "text": "United States, 5 Cir., 196., 372 F.2d 651, reversed on other grounds, 1968, 390 U.S. 85, 88 S. Ct. 722, 19 L.Ed.2d 923. In affirming the panel in Sepe the Court en banc has in strong terms indicated its disapproval of any such conditional pleas and implicity the mechanism by which an appeal is sought from a plea of guilty. United States v. Sepe, supra. The Court’s en banc opinion declares “. . .we now take advantage of an opportunity to say that as a matter of policy this court disapproves the practice of accepting pleas of guilty or nolo contendere if they are coupled with agreements that the defendant may nevertheless appeal on non jurisdictional grounds.” As in Sepe this case illustrates the soundness of this rule. The defendant’s theory was that the initial arrest was invalid and hence did not justify the warrantless search of his nearby parked vehicle made by the officers, so they asserted, under the predetermined policy of inventorying any vehicle upon being taken into police custody. The principal element of the theory was that simply passing a counterfeit bill is not enough since there must be proof of knowledge/intent — -an unquestioned truth in testing conviction, but not necessarily so in assaying arrest, search, or both. To east the whole thing into the highly simplified question of whether the motion to suppress should properly have been sustained assumes that what the trial court found was an adequate factual basis for the arrest/search is all the evidence the government has. Although that may be so in a large number of instances, neither the trial judge in his role as umpire — not advocate,! nor the appellate court from its restrictive position have the facilities for ascertaining what the true situation is. Indeed, on argument we are told with positiveness that had the case gone to trial the government had abundant other evidence to establish knowledge/intent and that the reason it did not offer it on the suppression hearing was that counsel felt that the District Judge would do as he did and deny the motion." }, { "docid": "5864371", "title": "", "text": "of the Advisory Committee on the Federal Rules of Criminal Procedure to amend Criminal Rule 11 to provide that: (a)(2) Conditional pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be afforded the opportunity to withdraw his plea. This proposal would end the conflict that now exists in the circuits over the validity of the practice. E.g., compare United States v. Burke, 517 F.2d 377, 379 (2d Cir. 1975) and United States v. Moskow, 588 F.2d 882 (3d Cir. 1978) with United States v. Brown, 499 F.2d 829, 832 (7th Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974) and United States■ v. Sepe, 474 F.2d 784, aff’d en banc, 486 F.2d 1044 (5th Cir. 1973); see also authorities collected in United States v. DePoli, 628 F.2d 779, 781 n.l (2d Cir. 1980). It is not our intention to retreat from our prior approval of conditional guilty pleas, as expressed in such opinions as United States v. Burke, supra; and United States v. Faruolo, 506 F.2d 490, 491 n.2 (2d Cir. 1974). We are fully aware that forcing a defendant who has lost a pre-trial motion to undergo a full trial in order to preserve the point of the motion for appellate review imposes a burden on the defendant and wastes prosecutorial and judicial resources. But we agree'with the panel in United States v. Lace, 669 F.2d at 53 n.5, in “urging caution in accepting guilty pleas that are subject to [numerous] conditions.” In that case, although in a different context, the majority cautioned that when a defendant reserves for appeal more than one “pivotal” and “clear cut” issue, the trial judge should be satisfied “that the reserved issues are significant to the outcome of the case,” id. And in concurring, Judge Newman pointed out that a conditional guilty plea “should not be a device to" }, { "docid": "6391924", "title": "", "text": "the use of conditional pleas of guilty and nolo contendere in our circuit. The underlying reasons for the court’s pronouncement in Sepe were markedly absent. Demonstrating the judiciary’s ability to quickly respond to new guiding prin ciples, Chief Judge Brown adequately supplied both the ratio decendi for the Sepe opinion and the remedy to be provided once it is shown that an appeal arises on non-jurisdictional grounds from a conditional plea in United States v. Mizell, 488 F.2d 97 (5th Cir. 1973). Mizell concerned an appeal from a nolo contendere plea on the non-jurisdictional issue of whether the district court properly refused to suppress evidence seized in an allegedly routine inventory search by the police. The court first noted that the district court had apparently recognized by sanctioning the reserved right to appeal from the plea of nolo contendere, that Mizell’s conviction could not stand but for the allegedly illegally seized evidence. Second, the court noted the difficulty inherent in actually resolving the question whether the government could have established the guilt of Mizell even without the fruits of the search. It was observed that Mizell’s case did not present the situation where the government’s evidence is limited strictly to the surrounding facts or the actual fruits seized during the search. Thus the Mizell court was requested to play the “appellate guessing game” of determining whether a ruling on the suppression order adverse to that made by the district court would actually result in a different disposition of the case on remand. However, the appellate tribunal is not the only judicial body which must meet the challenge of dealing with the contingencies of its ruling. The district court as well becomes inextricably involved in the “result oriented intrigue” which emanates from a district court approved appeal based on conditional pleas. The Mizell decision succinctly summarized the district court’s dilemma: If the sentencing Judge accepts the proposed conditional plea he has first to predict what the Court of Appeals will decide as to appealability of that particular case. This means that if, as is true here, his prediction of appealability is" }, { "docid": "23483527", "title": "", "text": "PER CURIAM: The panel opinion in this case is reported, United States v. Sepe, 5 Cir., 1973, 474 F.2d 784. The panel held that Sepe’s voluntary plea of guilty to a charge of conspiring to import heroin and his voluntary pleas of nolo contendere to charges of importing heroin and of possessing narcotics with intent to distribute waived all non-jurisdictional errors and barred an appeal in which Sepe sought to assert that the heroin and the suitcase in which it was contained should have been suppressed as the fruits of an unlawful search. It was further held that a guilty plea is not invalid because it represents a compromise by the defendant or thrusts a difficult judgment on him or is motivated by fear of greater punishment. The panel was careful to say that a guilty plea does not bar an appeal which asserts that the indictment or information failed to state an offense, or that the statute providing the basis for the charge is unconstitutional, or that the indictment showed on its face that it was barred by the statute of limitations. In the interest of clarity we point out that this case did not) involve an express agreement to allow an appeal, but we now take advantage of an opportunity to say that as matter of policy this Court disapproves the practice of accepting pleas of guilty or nolo contendere if they are coupled with agreements that the defendant may nevertheless appeal on non-jurisdictional grounds. The opinion and judgment of the panel, 474 F.2d 784, is Affirmed. . Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). . United States v. Rosenberg, 5 Cir., 1972, 458 F.2d 1183. . United States v. Cook, 5 Cir., 1972, 463 F. 2d 123; United States v. Wysocki, 5 Cir., 1972, 457 F.2d 1155. Since the record reflects no agreement to permit an appeal after the guilty and nolo pleas, this appeal presents no Santolello issue, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)." }, { "docid": "1253766", "title": "", "text": "Repleading As each of the “jurisdictional” issues asserted by each appellant have been found wanting, we have given full faith to the District Court's agreement on the nolo plea. No one has been misled. The bargain has been kept on all sides. The conditions of the provisional pleas have been fully respected. There is therefore no basis for remanding for repleading. Affirmed. . The distances were a matter of stipulation in the District Court. . Saunders entered a plea of nolo contendere, received a sentence of 18 months imprisonment and chose not to appeal. . § 952. (a) It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I of this chapter, or any narcotic drug in schedule III, IV, or V of subchapter I of this chapter. . § 963. Attempt and conspiracy Any person who attempts or conspires to commit any offense defined in this sub-chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy. . A. J. Moreno, who allegedly helped put the load together in Jamaica, was also indicted but has never been arrested. . These appeals are necessarily limited to attacks on jurisdictional defects in light of our recent decisions in United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044 (en banc) affirming 474 F.2d 784; and United States v. Mizell, 5 Cir., 1973, 488 F.2d 97. See note 8, infra. . While each appellant incorporates all the helpful theories of his co-appellants as a matter of course, differences in factual circumstances such as nationality or situs of arrest occasionally call for separate treatment which we indicate. . In Sepe we held that after entering a plea of noio contendere or a plea of guilty, a defendant may only appeal jurisdictional defects in the proceeding below," }, { "docid": "9635512", "title": "", "text": "guilty by a defendant represented by counsel, even coupled with an inculpatory stipulation, is a plea of not guilty, and absent evidence of any prosecutorial overreaching, the defendant is not entitled to the protections of Rule 11. The judgment is AFFIRMED. . See, e.g., United States v. Swann, 5 Cir.1979, 574 F.2d 1316; United States v. Sepe, 5 Cir., 474 F.2d 784, aff’d on rehearing, 1973, 486 F.2d 1045. The “jurisdictional” exception to the general rule against appeals from guilty pleas refers to challenges that question the authority of the government to bring the charges. Thus, a defendant who has pleaded guilty may still contend that the indictment or information failed to state an offense, that the statute under which he was charged is unconstitutional, or that the prosecution is barred by double jeopardy. 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 175 (1982). . The Judicial Conference circulated the amendments to Rule 11 for comment in November 1979 and, again in October 1981. As amended, Rule 11(a)(2) would read: Conditional pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be allowed to withdraw his plea. See Report of the Judicial Conference Committee on Rules of Practice and Procedure, Proposed Amendments to the Federal Rules of Criminal Procedure 13, Sept. 1982. . The trial court may not participate in plea bargaining discussions, F.R.Crim.P. 11(e)(1), but if it accepts the plea agreement, the court must inform the defendant that it will abide by the disposition of the case agreed to by the prosecutor. F.R.Crim.P. 11(e)(3). For a discussion of the courts role in such situations, see Alschuler, The Trial Judge’s Role in Plea Bargaining, Part I, 1976, 76 Colum.L.Rev. 1059. . The colloquy between the trial judge, Robertson, and his counsel regarding Robertson’s right to a jury trial was: The Court: ... What do" }, { "docid": "21999912", "title": "", "text": "considered and determined by the trial court and upheld on direct review by the Court of Appeals, it may not be collaterally relitigated, see Argo v. United States, 473 F.2d 1315 (9th Cir.), cert. denied, 412 U.S. 906, 93 S.Ct. 2298, 36 L.Ed.2d 972 (1973); Meyers v. United States, 446 F.2d 37 (2d Cir. 1971); Hardy v. United States, 127 U.S.App.D.C. 162, 381 F.2d 941 (1967). However, in Kaufman v. United States, 394 U.S. 217, 226, 89 S.Ct. 1068, 1074, 22 L.Ed.2d 227 (1969) it was held that where a petitioner makes a “substantial allegation of newly discovered evidence” the remedy under § 2255 is available to a federally convicted and sentenced criminal defendant. As noted above, the petitioners have alleged such new evidence, specifically, the handwriting analysis indicating that the initials on the memoranda authorizing the wiretaps were not those of John Mitchell. A second factor in the prior proceedings presents a novel problem, but one that is likely to recur. Ordinarily when a defendant enters a plea of guilty or nolo contendere, he waives all non-jurisdictional defects, including constitutional challenges to the prosecution that were or might have been raised at or before trial. A collateral attack upon his plea would be limited to an inquiry into the voluntariness of the plea and the adequacy or competence of the advice provided him by counsel. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ; McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). However, this is not the ordinary case. The petitioners, by stipulated agreement with the government and with the approval of the court, entered nolo pleas while reserving their right to appeal the court’s ruling on their motion to suppress. While the practice of permitting such qualified guilty or nolo pleas has not been widely accepted, see United States v. Mizell, 488 F.2d 97 (5th Cir. 1973) and cases cited therein, it has become an apparently sanctioned practice in the Second Circuit. See United" }, { "docid": "1253767", "title": "", "text": "conspires to commit any offense defined in this sub-chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy. . A. J. Moreno, who allegedly helped put the load together in Jamaica, was also indicted but has never been arrested. . These appeals are necessarily limited to attacks on jurisdictional defects in light of our recent decisions in United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044 (en banc) affirming 474 F.2d 784; and United States v. Mizell, 5 Cir., 1973, 488 F.2d 97. See note 8, infra. . While each appellant incorporates all the helpful theories of his co-appellants as a matter of course, differences in factual circumstances such as nationality or situs of arrest occasionally call for separate treatment which we indicate. . In Sepe we held that after entering a plea of noio contendere or a plea of guilty, a defendant may only appeal jurisdictional defects in the proceeding below, such as the failure of the indictment to state a crime, the unconstitutionality of the statute underlying the indictment, the expiration of the statute of limitations or necessarily the District Court’s lack of jurisdiction over the subject matter or the persons of the defendants. Furthermore, we disapproved the practice whereby a District Court accepted a plea sanctioning an agreement between prosecution and defense under which the defendant would be allowed to raise non-jurisdictional defects on appeal. In Mizeli we vacated and remanded with orders to allow the defendant to determine whether to replead, in view of the presence of the type of agreement disapproved in Sepe. See also United States v. Mendoza, 5 Cir., 1974, 491 F.2d 534; Haynes v. United States, 5 Cir., 1967, 372 F.2d 651 reversed on other grounds, 1968, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923; United States v. Cash, 5 Cir., 1973, 486 F.2d 295. . The alterations were financed by the advance payment. The BNDD provided Warren with $500.00 to cover the expenses of the trip to" }, { "docid": "6391922", "title": "", "text": "respective rights to appeal the Trial Court’s ruling on their motion to suppress. At the same time, all three defendants do not desire to unnecessarily prolong the proceedings herein. Thus, even though appellants stipulated all the essential facts necessary for their conviction, they did not withdraw their pleas of not guilty, and sought to expressly reserve their right to appeal from the order denying the motion to suppress. On this appeal, there is no attack on the facts as stipulated by appellants and their counsel. The district court carefully interrogated all appellants and their counsel and was assured by them that the stipulations were made knowingly and voluntarily with the full advice of privately retained counsel. Furthermore, the district court implicitly recognized the appellants’ reserved right to appeal from its order denying the motion to suppress the evidence. As a threshold issue, it is incumbent upon an appellate court to determine whether it may properly exercise its jurisdiction in each case. Although neither party to this appeal has contested our jurisdiction, their omissions do not foreclose our review sua sponte. Accordingly, we must resolve whether an appeal may be properly perfected from a judgment of conviction emanating from a defendant’s contradictory plea of not guilty as compared with his subsequent stipulations which expressly and effectively admit sufficient facts to support an adjudication of guilty of the charges in the indictment but explicitly reserves the right to appeal. Our sensitivity to the problem posed arises from this circuit’s recent en banc decision in United States v. Sepe, 486 F.2d 1044, affirming 474 F.2d 784 (5th Cir. 1973). In Sepe it was clearly stated that: In the interest of clarity we point out that this case did not involve an express agreement to allow an appeal, but we now take advantage of an opportunity to say that as a matter of policy this Court disapproves the practice of accepting pleas of guilty or nolo contendere if they are coupled with agreements that the defendant may nevertheless appeal on non-jurisdictional grounds. Id. at 1045. (footnote omitted) Sepe thus sounded this court’s disapproval of" }, { "docid": "1253797", "title": "", "text": "S.Ct. 1848, 29 L.Ed.2d 534 (state statute denying assistance benefits to resident alien unconstitutional); In re Griffiths, 1973, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (state statute denying resident alien opportunity to take bar exam unconstitutional). We are unaware of any context, however, in which an alien has greater rights under law in our Courts than an American citizen. Indeed, such a circumstance might in itself raise serious questions of equal protection. . Parks was arrested in Miami harbor after he was discovered hiding aboard M/V Adventurer III following the arrests of the other appellants aboard M/V Big L. . In view of Ker, Frisbie and Vicars, Parks’ counsel was careful not to phrase his theory in terms of a challenge to the Court’s jurisdiction over the person. . United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044 (en banc). While Sepe permits a defendant to enter a guilty or nolo plea and yet preserve a challenge to the Court’s jurisdiction (whether personal or subject matter) on appeal, a defendant who has pleaded under such a court approved reservation may not renew a motion to suppress on appeal simply by invoking the magic words “jurisdictional-defect” and phrasing his argument as a challenge to the arresting officer’s jurisdiction to search or arrest. Both court and counsel were aware of the limitations on a Sepe nolo plea. Parks’ attorney was fully aware of Sepe and its implications since he had been counsel both at trial and on appeal in Sepe as well as in United States v. Caraway, 5 Cir., 1973, (en banc), 483 F.2d 215 (dismissed as moot) vacating 474 F.2d 25, the two cases in this Circuit in which the issue had then arisen. The District Court was well acquainted with the panel decision in Sepe (subsequently affirmed en banc) and time and again warned counsel that it simply would not accept a plea reserving the right to appeal defects other than challenges to the Court’s jurisdiction. At one point during the hearing on the pleas, the Court stated emphatically: With respect to the motion to dismiss," }, { "docid": "18007574", "title": "", "text": "issue raised is an unsettled one, see United States v. Mauro, 2 Cir. 1976, 544 F.2d 588, cert. granted, - U.S. -, 98 S.Ct. 53, 54 L.Ed.2d 71; United States v. Scallion, 5 Cir. 1977, 548 F.2d 1168, petition for cert. pending, No. 76-6659. However, a threshold issue is dispositive of this case. We disapprove the practice of accepting a guilty or nolo contendere plea coupled with a court-approved agreement that a defendant may nevertheless appeal on non jurisdictional grounds. United States v. Sepe, 5 Cir. 1973, 486 F.2d 1044 (en banc). While a guilty plea does not bar an appeal that asserts that the indictment failed to state an offense, or that the charge is unconstitutional, or that the indictment showed on its face that it was barred by the statute of limitations, Sepe, at 1045, none of these grounds for appeal are available in the instant case. As this Court suggested in United States v. Mizell, 5 Cir. 1973, 488 F.2d 97, a guilty plea induced by a court-approved promise that could not be fulfilled cannot be viewed as voluntary. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1960). Accordingly, the judgment must be vacated. The appellant may withdraw his guilty plea which had been conditioned on the agreement disapproved above, and may plead anew. VACATED and REMANDED." }, { "docid": "14220185", "title": "", "text": "reachable from a nolo conviction. Non-Jurisdictional, Non-Appealable The initial consideration before this Court on any appeal from a conviction founded on a nolo contendere plea is what form of error is appealable. Prior decisions clearly indicate that only jurisdictional defects in the proceedings below may be considered by this Court on appeal. United States v. Winter, 5 Cir., 1975, 509 F.2d 975, 978 n. 8; United States v. Chaiken, 5 Cir., 1973, 489 F.2d 1052; United States v. Mizell, 5 Cir., 1973, 488 F.2d 97; United States v. Drummond, 5 Cir., 1974, 488 F.2d 972; United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044, aff’g, 474 F.2d 784. Of the eleven defects alleged on appeal, those numbered 1, 2, 3, 4, 5, 6, 8,10, and 11 are nonjurisdictional. Consequently, these contentions may not be considered by this Court on appeal. elurisdictional — Appealable In one of their jurisdictional attacks, Tallant and Womack contend that § 17(a) of the Securities Act of 1933 (1933 Act), 15 U.S.C. § 77q(a) is unconstitutional because it makes “unlawful future acts that ‘would operate as a fraud’ as distinguished from present or past acts that do not operate as a fraud.” Essentially, because these purchasers received the same class of stock at the same price, the appellants’ argument is that ■no purchaser sustained a loss by receipt of stock owned or controlled by Tallant or Womack rather than the original issue stock they believed they were purchasing. Section 77q(a) speaks in terms of that . . operates or would operate as a fraud or deceit upon the purchaser.” Additionally, the 1933 Act makes unlawful the making of untrue statements of material fact or the omissions of such a fact. 15 U.S.C.A. § 77q(a). It is not the occurrence of a dollar loss as a result of the actions, statements, or omissions which is unlawful under the 1933 Act. Among the purposes of this Act, one was to insure purchasers of securities full, truthful, and accurate information on which to base their security transactions decisions and to protect them from fraud and misrepresentation. I L." }, { "docid": "10770132", "title": "", "text": "to a speedy trial. 3. Ineffective assistance of counsel. The entry of a knowing and voluntary guilty plea waives all non jurisdictional defects in the proceeding. See United States v. Broome, 628 F.2d 403, 404-405 (5th Cir. 1980). This disposes of the speedy trial claim. United States v. Davis, 608 F.2d 555, 557 (5th Cir. 1979). Citing United States v. Sepe, 474 F.2d 784 (5th Cir.) aff’d 486 F.2d 1044, 1045 (5th Cir. 1973) (en banc), the government asserts that a claim of double jeopardy cannot be raised after a counseled plea of guilty. Broussard’s pro se reply brief, however, cites Green v. Estelle, 601 F.2d 877, 878 (5th Cir. 1979) and Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) for the proposition that a guilty plea does not bar a double jeopardy claim. Even a cursory reading of these cases reveals that the entry of a guilty plea does not waive a challenge based on a violation of the double jeopardy clause. To suggest otherwise, as the government has, ignores the plain holdings of definitive opinions of the Supreme Court and this court. The claim of double jeopardy was, therefore, properly raised before the district court. The second prosecution did not, however, violate Broussard’s fifth amendment guarantee. He initially pled guilty in the Northern District of Texas to constructive possession of marijuana, 21 U.S.C. § 844, and to misprision of a felony, 18 U.S.C. § 4. Broussard contends that this guilty plea barred the subsequent indictment for conspiracy because the possession count is a lesser included offense. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Brown v. United States, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). That contention is mer-itless. Although the indictment entered in the initial prosecution contained a conspiracy count, the persons and dates involved and the overt facts alleged in the first indictment were different from those set forth in the second indictment. Further, it is well settled that the simple possession offense is separate and independent from the conspiracy charge." }, { "docid": "2170388", "title": "", "text": "on a promise or agreement of the prosecutor . . . such promise must be fulfilled,” and perhaps even be specifically performed. “The defendants at bar had every right to and did in fact plead not guilty. After their motion to suppress was overruled they were confronted by one of the hard choices of which our criminal process is replete. See McGautha v. California, supra, 402 U.S. at 213, 91 S.Ct. 1454. They could go to trial on charges of armed robbery and put the government to its burden of proving their guilt, see McMann v. Richardson, supra, 397 U.S. at 767, 90 S.Ct. 1441; United States v. Doyle, 348 F.2d 715 (2nd Cir. 1965), or they were free to bargain with the prosecutor and offer to plead guilty to a reduced charge or be promised leniency. “In intelligently weighing their options, the defendants chose to plead guilty to reduced charges. Their mental calculus was undoubtedly affected by the district court’s ruling on the motion to suppress and by their estimation of the likelihood of that ruling being set aside on appeal.6 If they and their counsel believed the chances of reversal to be high, we fail to understand what was to be. gained by pleading guilty. The plea of not guilty should have been maintained and the government' put to its burden.” In the foregoing decision the Court of Appeals for the Sixth Circuit concluded that even with the consent of the prosecution, pleas of guilty cannot be accepted while the defendant reserves the right to appeal on non-jurisdictional grounds. In the interest of orderly procedures in the conduct of criminal trials, in order that criminal prosecutions may be reduced to final judgments so as to confer appellate jurisdiction, and for all the reasons so ably set forth in United States v. Cox, supra, we agree with the principles there announced. This leaves one matter for disposition. Sepe pleaded nolo contendere to Count 5 of the indictment. On appeal, apparently for the first time, it is now noticed that this count was defective for failure to assert the essential" }, { "docid": "897138", "title": "", "text": "BROWN, Chief Judge: Appellant appeals from a conviction on a plea of nolo contendere for passing a $20.00 bill (count I) and possessing 15 counterfeit $20.00 federal reserve notes (count II), 18 U.S.C.A. § 472. The sole error asserted is that the trial court erred in denying his motion to suppress, the theory apparently being that without the evidence sought to be suppressed the government could not have made out the requisite case. The sentencing Judge credited this theory to the extent that in response to a plea bargain struck between the government and defendant on the entry of the nolo plea and resulting conviction on it the defendant would nevertheless have a right to appeal the correctness of the Court’s ruling on suppression. We have held this case awaiting en banc decision in United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044 (en banc), to determine whether an appeal properly lies after a plea of guilty — or its consequential equivalent, a plea of nolo contendere — to raise non-jurisdictional issues. Haynes v. United States, 5 Cir., 196., 372 F.2d 651, reversed on other grounds, 1968, 390 U.S. 85, 88 S. Ct. 722, 19 L.Ed.2d 923. In affirming the panel in Sepe the Court en banc has in strong terms indicated its disapproval of any such conditional pleas and implicity the mechanism by which an appeal is sought from a plea of guilty. United States v. Sepe, supra. The Court’s en banc opinion declares “. . .we now take advantage of an opportunity to say that as a matter of policy this court disapproves the practice of accepting pleas of guilty or nolo contendere if they are coupled with agreements that the defendant may nevertheless appeal on non jurisdictional grounds.” As in Sepe this case illustrates the soundness of this rule. The defendant’s theory was that the initial arrest was invalid and hence did not justify the warrantless search of his nearby parked vehicle made by the officers, so they asserted, under the predetermined policy of inventorying any vehicle upon being taken into police custody. The principal element" }, { "docid": "14220184", "title": "", "text": "JOHN R. BROWN, Chief Judge: In connection with the intrastate offering and sale of securities of the Preferred Land Corporation, Fred C. Tallant, Sr. and William Womack, Jr., as officers, directors, and control persons, were indicted for violation of the general antifraud section of the Securities Act of 1933, 15 U.S.C.A. § 77q(a), the federal mail fraud statute, 18 U.S.C.A. § 1341, and of the federal conspiracy statute, 18 U.S.C. § 371. Because of falsification and presentation of such records to the Securities and Exchange Commission (S.E.C.) for examination in violation of 18 U.S.C.A. § 1505, appellant Womack was indicted individually for obstruction of the proper administration of the Securities Act of 1933. After repeated pre-trial attacks, both Tallant and Womack pleaded, just prior to trial, nolo contendere to all counts of the indictment. On appeal from the conviction on a plea of nolo, eleven errors are set forth. Of those items of error properly before this Court, we find them to be without merit and affirm the convictions. Many of the errors are not reachable from a nolo conviction. Non-Jurisdictional, Non-Appealable The initial consideration before this Court on any appeal from a conviction founded on a nolo contendere plea is what form of error is appealable. Prior decisions clearly indicate that only jurisdictional defects in the proceedings below may be considered by this Court on appeal. United States v. Winter, 5 Cir., 1975, 509 F.2d 975, 978 n. 8; United States v. Chaiken, 5 Cir., 1973, 489 F.2d 1052; United States v. Mizell, 5 Cir., 1973, 488 F.2d 97; United States v. Drummond, 5 Cir., 1974, 488 F.2d 972; United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044, aff’g, 474 F.2d 784. Of the eleven defects alleged on appeal, those numbered 1, 2, 3, 4, 5, 6, 8,10, and 11 are nonjurisdictional. Consequently, these contentions may not be considered by this Court on appeal. elurisdictional — Appealable In one of their jurisdictional attacks, Tallant and Womack contend that § 17(a) of the Securities Act of 1933 (1933 Act), 15 U.S.C. § 77q(a) is unconstitutional because it makes “unlawful" }, { "docid": "6391923", "title": "", "text": "foreclose our review sua sponte. Accordingly, we must resolve whether an appeal may be properly perfected from a judgment of conviction emanating from a defendant’s contradictory plea of not guilty as compared with his subsequent stipulations which expressly and effectively admit sufficient facts to support an adjudication of guilty of the charges in the indictment but explicitly reserves the right to appeal. Our sensitivity to the problem posed arises from this circuit’s recent en banc decision in United States v. Sepe, 486 F.2d 1044, affirming 474 F.2d 784 (5th Cir. 1973). In Sepe it was clearly stated that: In the interest of clarity we point out that this case did not involve an express agreement to allow an appeal, but we now take advantage of an opportunity to say that as a matter of policy this Court disapproves the practice of accepting pleas of guilty or nolo contendere if they are coupled with agreements that the defendant may nevertheless appeal on non-jurisdictional grounds. Id. at 1045. (footnote omitted) Sepe thus sounded this court’s disapproval of the use of conditional pleas of guilty and nolo contendere in our circuit. The underlying reasons for the court’s pronouncement in Sepe were markedly absent. Demonstrating the judiciary’s ability to quickly respond to new guiding prin ciples, Chief Judge Brown adequately supplied both the ratio decendi for the Sepe opinion and the remedy to be provided once it is shown that an appeal arises on non-jurisdictional grounds from a conditional plea in United States v. Mizell, 488 F.2d 97 (5th Cir. 1973). Mizell concerned an appeal from a nolo contendere plea on the non-jurisdictional issue of whether the district court properly refused to suppress evidence seized in an allegedly routine inventory search by the police. The court first noted that the district court had apparently recognized by sanctioning the reserved right to appeal from the plea of nolo contendere, that Mizell’s conviction could not stand but for the allegedly illegally seized evidence. Second, the court noted the difficulty inherent in actually resolving the question whether the government could have established the guilt of Mizell even" }, { "docid": "5864370", "title": "", "text": "the latter unconstitutionally vague, as applied to these facts. III. As the foregoing indicates, none of the issues raised by appellant is difficult to resolve, but there is one aspect of the appeal that deserves further discussion. We refer to the problems, recently alluded to by another panel of this court, raised by allowing defendants to plead guilty to a few counts of an indictment while reserving various points on appeal. See United States v. Lace, 669 F.2d 46, 53 n.5, 57 n.7 (2d Cir. 1982). In the case now before us, the indictment contained 98 counts; defendant pleaded guilty to two counts and the government moved to dismiss the remaining 96 counts, which motion was granted. Also, the government agreed not to oppose defendant’s motion to vacate a prior contempt order entered during the trial of co-defendant Pitcher. Appellant raises four issues before us, three of which attack the validity of the indictment. The dangers, as well as the virtues, of conditional guilty pleas take on increased significance in light of the recent proposal of the Advisory Committee on the Federal Rules of Criminal Procedure to amend Criminal Rule 11 to provide that: (a)(2) Conditional pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be afforded the opportunity to withdraw his plea. This proposal would end the conflict that now exists in the circuits over the validity of the practice. E.g., compare United States v. Burke, 517 F.2d 377, 379 (2d Cir. 1975) and United States v. Moskow, 588 F.2d 882 (3d Cir. 1978) with United States v. Brown, 499 F.2d 829, 832 (7th Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974) and United States■ v. Sepe, 474 F.2d 784, aff’d en banc, 486 F.2d 1044 (5th Cir. 1973); see also authorities collected in United States v. DePoli, 628 F.2d 779, 781 n.l (2d" } ]

[ { "docid": "22573780", "title": "", "text": "also United States v. Correa-Vargas, 860 F.2d 35, 40 (2d Cir.1988) (endorsing the district courts’ “exercise [of] their sound judgment in departing from the Guidelines”). Appellant Russell argues to us, as he did to the district court, that his case was a proper one for consideration of a sentence below the guideline minimum. Russell, the driver of a Wells Fargo armored truck, had no criminal record. A bank had mistakenly handed Russell’s partner, the truck’s messenger, an extra money bag containing $80,000. The men initially yielded to temptation and decided to keep the money. A week later, however, they admitted what they had done. Russell returned all the money that he had kept, and cooperated fully in the investigation of the crime. Russell argued that the district court should impose a sentence below the guideline minimum because Russell’s conduct was a single episode of “aberrant behavior,” it involved no planning, and Russell cooperated fully with the government and returned all the money. In imposing sentence, the district court expressed sympathy for the predicament that faced Russell and his compatriot when an extra $80,000 was literally placed in their hands. The court stated: I recognize the limitations on the financial resources of these two gentlemen. I recognized that, when I first took into consideration what happens when $80,000 suddenly falls in your lap, and you’re not a rich person. That certainly didn’t fail to dawn upon me. Sentencing Hearing Transcript at 38. The court took these circumstances into account in imposing sentence, noting “that’s one reason why I’m at the bottom of the guideline possibility of four to ten months.” Id. The district court did not make explicit, however, whether it considered the possibility of imposing a sentence below the guideline range by virtue of the arguably atypical nature of Russell’s conduct. The Sentencing Commission made clear that departures are permitted in atypical cases, at the sentencing judge’s discretion: The Commission intends the sentencing courts to treat each guideline as carving out a “heartland,” a set of typical cases embodying the conduct that each guideline describes. When a court finds an" } ]

[ { "docid": "6616784", "title": "", "text": "one-year period were not ‘spontaneous and seemingly thoughtless.’ ” (quoting Carey, 946 F.2d at 338)). We, too, respectfully disagree with the Ninth Circuit’s view. It is admittedly difficult to discern precisely what the Sentencing Commission intended in drafting the “aberrant behavior” reference. At the very least, we can surmise that the Commission intended a limited application of the principle. As a general matter, we must consider the Guidelines, policy statements, and official commentary in determining whether a circumstance was adequately taken into consideration by the Commission, see 18 U.S.C. § 3553(b), and the Guidelines specifically mandate that departures be the exception and occur only when truly justified. See Guidelines Ch. 1, Pt. A, Intro. ¶ 4(b). Given this, we find that the Ninth Circuit’s approach offers too broad an interpretation of the aberrant behavior rationale. In Carey, we cited United States v. Russell, 870 F.2d 18 (1st Cir.1989), as a good example of a scenario in which the aberrant behavior exception might properly ap ply. The defendant in Russell drove a Wells Fargo armored truck and had no previous criminal record. A bank mistakenly handed Russell’s partner, the truck’s messenger, a money bag containing $80,-000; The men initially kept the money, but one week later admitted their misdeed. Russell returned all the money and cooperated fully in the investigation of the crime. Although the First Circuit upheld the district court’s decision not to depart downward it noted that Russell’s behavior was “arguably ‘aberrant.’ ” Id. at 20. In Carey, we agreed with this assessment, noting that Russell had committed a single, unplanned, spontaneous act, and had returned the money shortly after committing the offense. Carey, 895 F.2d at 325. In granting Andruska’s downward departure, the district court apparently based its decision largely upon the testimony of her husband, who said at the sentencing hearing that his wife “wasn’t herself” during the relevant period. Sentencing Tr. at 64. Anthony Andruska stated that “Ella had her own apartment and she had a job on a car lot and she was educated and knew what she was doing,” id. at 63, but that" }, { "docid": "23707852", "title": "", "text": "considerations that should enter into the discretionary authority to be exercised by district courts in awarding downward departures. The power to depart from the sentencing range established by the Commission is conferred by statute, as recognized in the first sentence of Section 5K2.0: Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guidelines, if the court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” U.S.S.G. § 5K2.0. In accordance with the foregoing, the Guidelines specifically noted the possibility of departures for aberrant behavior in referring to “single acts of aberrant behavior that still may justify probation at higher offense levels through departures.” U.S.S.G., ch. 1, pt. A, 4(d). Recognizing that a single act of aberrant behavior might justify a downward departure, and aware of the absence of an appropriate rule in this Circuit defining the meaning of “single aberrant act,” the panel in Zecevic undertook the formulation of such a rule. The panel recognized that there had been two approaches to the question, with some circuits concluding that what was contemplated was a spontaneous and thoughtless act not the result of substantial planning while other circuits employed a totality of circumstances test, with spontaneity and lack of planning not dispositive but being among a number of factors to be considered. Zecevic, 163 F.3d at 734. The panel aligned itself with those circuits adopting the totality of circumstances approach, defining aberrant behavior as a short-lived departure from a life that is otherwise law abiding and listing the following factors to be considered: (1) the singular nature of the criminal act; (2) the defendant’s criminal record; (3) the degree of spontaneity and planning inherent in the conduct; (4) extreme pressures acting on the defendant, including any psychological disorders from which he may have been suffering, at the time of the offense; (5) the defendant’s motivations for committing the crime, including any" }, { "docid": "23602229", "title": "", "text": "standard. We, therefore, turn our attention to that task. Two cases establish what have come to be recognized as the outer boundaries of the aberrant behavior spectrum. United States v. Russell, 870 F.2d 18 (1st Cir.1989), stands at one end of the spectrum and United States v. Carey, 895 F.2d 318 (7th Cir.1990), at the other. Russell involved criminal conduct which was impulsive and unpremeditated. Tempted by the prospect of instant wealth, a Wells Fargo armored truck driver and his partner decided to keep an extra bag of money mistakenly handed them. The driver, who had no prior criminal record, returned the money almost immediately after committing his crime and cooperated in the subsequent police investigation. In contrast, Carey involved a premeditated criminal scheme carried out over a long period of time. There, a trucking company president engaged in a check-kiting scheme over a fifteen-month period. Each work day during this period the company president concealed his two over-drawn bank accounts by having his bookkeeper prepare checks to cover the fund shortage. He signed each check and frequently deposited them himself. The Seventh Circuit held that this behavior was not “aberrant.” 895 F.2d at 324-25. Uncertainty about the reason for the district court’s refusal to depart precluded this court from deciding that issue in Russell. Circuit courts are divided over where criminal conduct must fall on the aberrant behavior spectrum to justify downward departure. As we noted in Catucci some have adopted an expansive view of what aberrant behavior means in the context of the Guidelines, whereas others require a spontaneous or thoughtless act of the sort committed by the defendant in Russell. The Seventh Circuit’s decision in Carey provided the moorings for the latter group of circuits. The Carey court held that “[a] single act of aberrant behavior ... generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable.” 895 F.2d at 325. The" }, { "docid": "22979192", "title": "", "text": "from Brenda’s conduct — spontaneity and lack of planning — are the very factors relied on by the majority of other circuits in allowing aberrant behavior departures. The circuits are split about the proper definition of aberrant behavior. A majority of the circuits' — the Third, Fourth, Fifth, Seventh, Eighth, Eleventh, and District of Columbia Circuits — have followed the Seventh Circuit’s formulation that: A single act of aberrant behavior ... generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable. United States v. Carey, 895 F.2d 318, 825 (7th Cir.1990); see United States v. Paster, 173 F.3d 206, 213 (3d Cir.1999); United States v. Marcello, 13 F.3d 752, 761 (3d Cir.1994); United States v. Glick, 946 F.2d 335, 338 (4th Cir.1991); United States v. Williams, 974 F.2d 25, 26-27 (5th Cir.1992); United States v. Andruska, 964 F.2d 640, 645 (7th Cir.1992); Wind, 128 F.3d at 1278; Kalb, 105 F.3d at 429; United States v. Premachandra, 32 F.3d 346, 349 (8th Cir.1994); Garlich, 951 F.2d at 164; United States v. Bush, 126 F.3d 1298, 1301 (11th Cir.1997); United States v. Withrow, 85 F.3d 527, 531 (11th Cir.1996); Dyce, 91 F.3d at 1470. In Carey, the Seventh Circuit reversed a downward departure because the defendant’s actions “were apparently the result of extensive planning and were spread out over a fifteen-month period.” Id. at 325. An early First Circuit case, United States v. Russell, 870 F.2d 18 (1st Cir.1989), is often cited by majority jurisdictions as the “paradigmatic,” aberrant behavior case. See Rachael A. Hill, Comment, Character, Choice, and “Aberrant Behavior”: Aligning Criminal Sentencing With Concepts of Moral Blame, 65 U. Chi. L.Rev. 975 (1998). In Russell: the driver of a Wells Fargo armored truck, had no criminal record. A bank had mistakenly handed Russell’s partner, the truck’s messenger, an extra money bag containing $80,000. The men initially yielded to temptation and decided to keep the money." }, { "docid": "22282536", "title": "", "text": "the Guidelines was warranted as his behavior constituted a single act of aberrant behavior. A finding that the defendant’s actions constituted such behavior to warrant a departure must be, however, based on more than the defendant’s high standing in the community and his lack of a prior criminal record. The Guidelines expressly bar consideration of a defendant’s socioeconomic status in sen tencing, and first offender status, taken alone, is insufficient to support a departure. While the Guidelines provide no guidance as to what constitutes a single act of aberrant behavior, we believe that it must be more than merely something “out of character” or the defendant’s first offense. Carey’s otherwise exemplary life before becoming involved in this check-kiting scheme does not render his actions, on their own, a single act of aberrant behavior to support a departure. Instead, we believe that there must be some element of abnormal or exceptional behavior. Carey’s actions were apparently the result of extensive planning and were spread out over a fifteen-month period. A single act of aberrant behavior, however, generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable. We have been able to find only one reported decision in which a defendant sought a downward departure, arguing that his behavior was a single act of aberrant behavior. This case, United States v. Russell, 870 F.2d 18 (1st Cir.1989), provides an excellent example of the type of behavior that a court may properly consider to be a single act of aberrant behavior (even though the court declined to do so). The defendant was a driver of a Wells Fargo armored truck who had no previous criminal record. A bank had mistakenly handed Russell’s partner, the truck’s messenger, an extra money bag containing $80,000. The men initially yielded to temptation and decided to keep the money. A week later, however, they admitted what they had done. Russell returned all of" }, { "docid": "23082262", "title": "", "text": "second argument is that the district court failed to exercise its discretion by not determining whether his actions constituted aberrant behavior which, in light of his status as a first offender, would warrant a downward departure to CTC probation. This contention is in turn based on the appellant’s argument that the district court erroneously believed that the Guidelines do not provide for downward departures based on aberrant behavior. It is clear under the Guidelines that “aberrant behavior” and “first offense” are not synonymous. The Guidelines make due allowance for the possibility of a defendant being a first offender. See Guidelines Manual, Ch. I, Part A, Introduction, para. 4(d) (“[T]he Guidelines work as follows in respect to a first offender”); United States v. Carey, 895 F.2d 318, 325 n. 4 (7th Cir.1990) (“[T]he Commission adequately considered the defendant’s first offender status in formulating the Guidelines”). Nevertheless, the Guidelines recognize that a first offense may constitute a single act of truly aberrant behavior justifying a downward departure. See Guidelines Manual, Ch. I, Part A, Introduction para. 4(d) (with respect to first offenders, “[t]he Commission ... has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures”); United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989) (“The Sentencing Commission made clear that departures are permitted in atypical cases[;] * * * [s]uch ‘aberrant behavior’ ... may justify departures in appropriate cases”). Although there are several reported decisions mentioning aberrant behavior in the context of first offenses, our research has disclosed only two cases which have squarely decided the question whether the facts of a particular first offense may warrant a finding of aberrant behavior justifying a downward departure. The first of these, United States v. Russell, supra, involved the driver of an armored truck who, as the result of a bank error, had a bag containing $80,000 in cash literally dumped in his lap. In a spontaneous act the driver temporarily yielded to the temptation to keep the money, but shortly thereafter confessed his wrongdoing, returned his share of the loot, and" }, { "docid": "10534450", "title": "", "text": "Andruska, 964 F.2d 640, 644-45 (7th Cir.1992), where, in reversing a reduced prison sentence, the court of appeals said that “the Commission intended [at most] a limited application of the [aberrant behavior] principle.” Whether or not the Commission intended only a limited application of the principle, we have no reason to doubt that a district court can give a first offender a prison sentence below the guideline range, as opposed to giving him probation, where the facts justify a finding that his crime truly was a single act of aberrant behavior. The locus classicus of such an act may be found in United States v. Russell, 870 F.2d 18 (1st Cir.1989), where the driver of a Wells Fargo armored truck spontaneously yielded to temptation and kept an extra bag of money that had been delivered to the truck by mistake. In asking the district court for clarification of a sentence within the guideline range, the court of appeals accepted the proposition that an unplanned, opportunistic crime of this sort could justify a sentence below the guideline range. (The district court responded that it did not choose to exercise its discretion to depart downward, and the court of appeals ultimately affirmed the sentence. Id. at 21.) At the opposite end of the spectrum from Russell is Carey, where the president of a trucking company — who also happened to be the pastor of a church — had engaged in a check-kiting scheme that required his constant attention and involved hundreds of overt acts over a period of 15 months. The Court of Appeals for the Seventh Circuit held that the conduct in question failed the “single act” test; because the defendant’s actions “were apparently the result of extensive planning and were spread out over a fifteen-month period,” the defendant’s behavior could not qualify as a single act of aberrant behavior. 895 F.2d at 325. The court observed that “[a] single act of aberrant behavior ... generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is" }, { "docid": "23602234", "title": "", "text": "balance between uniformity in sentencing and district court discretion the Guidelines were intended to strike. See Jackson, 30 F.3d at 201-02. We, thus, hold that determinations about whether an offense constitutes a single act of aberrant behavior should be made by reviewing the totality of the circumstances. District court judges may consider, inter alia, factors such as pecuniary gain to the defendant, charitable activities, prior good deeds, and efforts to mitigate the effects of the crime in deciding whether a defendant’s conduct is aberrant in terms of other crimes. See DeMasi, 40 F.3d at 1324 (departure determination should be made by comparing case to other cases involving the stated reason for departure). Spontaneity and thoughtlessness may also be among the factors considered, though they are not prerequisites for departure. That aberrant behavior departures are available to first offenders whose course of criminal conduct involves more than one criminal act is implicit in our holding. See Takai, 941 F.2d at 743. We think the Commission intended the word “single” to refer to the crime committed and not to the various acts involved. As a result, we read the Guidelines’ reference to “single acts of aberrant behavior” to include multiple acts leading up to the commission of a crime. See id. Any other reading would produce an absurd result. District courts would be reduced to counting the number of acts involved in the commission of a crime to determine whether departure is warranted. Moreover, the practical effect of such an interpretation would be to make aberrant behavior departures virtually unavailable to most defendants because almost every crime involves a series of criminal acts. Even the Russell defendant, whose spontaneous actions are widely regarded as a classic example of aberrant behavior, could be understood to have committed more than a single act of aberrant behavior. He conspired with his partner to take money from the armored truck he drove; took the money; and then kept the money for a short period of time. Thus, we think that focusing on the crime of conviction instead of the criminal acts committed in carrying out that" }, { "docid": "23707853", "title": "", "text": "the meaning of “single aberrant act,” the panel in Zecevic undertook the formulation of such a rule. The panel recognized that there had been two approaches to the question, with some circuits concluding that what was contemplated was a spontaneous and thoughtless act not the result of substantial planning while other circuits employed a totality of circumstances test, with spontaneity and lack of planning not dispositive but being among a number of factors to be considered. Zecevic, 163 F.3d at 734. The panel aligned itself with those circuits adopting the totality of circumstances approach, defining aberrant behavior as a short-lived departure from a life that is otherwise law abiding and listing the following factors to be considered: (1) the singular nature of the criminal act; (2) the defendant’s criminal record; (3) the degree of spontaneity and planning inherent in the conduct; (4) extreme pressures acting on the defendant, including any psychological disorders from which he may have been suffering, at the time of the offense; (5) the defendant’s motivations for committing the crime, including any pecuniary gain he derived therefrom; and (6) his efforts to mitigate the effects of the crime. Id. at 736. Following the listing of factors, the panel wrote: “This list is not exclusive, and no one factor shall be dispositive.” Id. The appellant in Zecevic failed the test of spontaneity applied in the first instance by the Parole Commission, and the Court deter mined that he failed the totality test as well. The panel wrote: Although he had the opportunity to and did present other evidence bearing on the totality standard, Zecevic presented no evidence to suggest he was suffering from any disorders or operating under any extreme pressures at the time he committed the offense, nor did he demonstrate any particular motive other than pecuniary gain. He did not claim that he had made efforts to mitigate the effects of the crime. Apart from his status as a first offender and the support of his mother, Zecevic has little else to recommend him for an aberrant behavior departure. Id. In United States v. Martinez, 207" }, { "docid": "10534449", "title": "", "text": "After explaining that it considers at least a short period of imprisonment appropriate at offense levels as low as 11 and 12, the Commission says that “of course, [the Commission] has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures.” Id. Other courts have surmised from this that “single acts of aberrant behavior” were excluded from consideration in the formulation of the guidelines generally; and thus might justify sentences below the guideline range even in cases where probation is not a viable option. See, e.g., United States v. Fairless, 975 F.2d 664, 668 (9th Cir.1992) (observing that nothing in the caselaw suggests that a single act of aberrant behavior can justify a departure only where the resulting sentence is probation); United States v. Carey, 895 F.2d 318, 324 (7th Cir.1990) (“the Guidelines permit a sentencing court to depart from the applicable range where it finds such [aberrant] behavior since the circumstance has not been adequately considered by the Commission”). See also United States v. Andruska, 964 F.2d 640, 644-45 (7th Cir.1992), where, in reversing a reduced prison sentence, the court of appeals said that “the Commission intended [at most] a limited application of the [aberrant behavior] principle.” Whether or not the Commission intended only a limited application of the principle, we have no reason to doubt that a district court can give a first offender a prison sentence below the guideline range, as opposed to giving him probation, where the facts justify a finding that his crime truly was a single act of aberrant behavior. The locus classicus of such an act may be found in United States v. Russell, 870 F.2d 18 (1st Cir.1989), where the driver of a Wells Fargo armored truck spontaneously yielded to temptation and kept an extra bag of money that had been delivered to the truck by mistake. In asking the district court for clarification of a sentence within the guideline range, the court of appeals accepted the proposition that an unplanned, opportunistic crime of this sort could justify a sentence below the" }, { "docid": "23602228", "title": "", "text": "Introduction ¶ 4(d); United States v. Williams, 974 F.2d 25, 26 (5th Cir.1992), cert. denied, 507 U.S. 934, 113 S.Ct. 1320, 122 L.Ed.2d 706 (1993). Defendant’s claim presents an issue of first impression in this Circuit. We have considered cases involving departure requests based on aberrant behavior, see, e.g., Catucci 55 F.3d at 19 n. 3; United States v. Pozzy, 902 F.2d 133, 137-38 (1st Cir.), cert. denied, 498 U.S. 943, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990); United States v. Russell, 870 F.2d 18, 21 (1st Cir.1989), but have not had occasion to define that term with specificity until now. Catucci supra, which the district court erroneously regarded as foreclosing departure, did not require us to define “aberrant behavior.” In that case, we acknowledged disagreement among the circuits as to what type of conduct aberrant behavior entails but did not deem it necessary to articulate a definition for our own Circuit because we found that the defendant had waived his departure claim. Grandmaison’s claim, in contrast, hinges on an articulation of an aberrant behavior standard. We, therefore, turn our attention to that task. Two cases establish what have come to be recognized as the outer boundaries of the aberrant behavior spectrum. United States v. Russell, 870 F.2d 18 (1st Cir.1989), stands at one end of the spectrum and United States v. Carey, 895 F.2d 318 (7th Cir.1990), at the other. Russell involved criminal conduct which was impulsive and unpremeditated. Tempted by the prospect of instant wealth, a Wells Fargo armored truck driver and his partner decided to keep an extra bag of money mistakenly handed them. The driver, who had no prior criminal record, returned the money almost immediately after committing his crime and cooperated in the subsequent police investigation. In contrast, Carey involved a premeditated criminal scheme carried out over a long period of time. There, a trucking company president engaged in a check-kiting scheme over a fifteen-month period. Each work day during this period the company president concealed his two over-drawn bank accounts by having his bookkeeper prepare checks to cover the fund shortage. He signed each" }, { "docid": "14363896", "title": "", "text": "Carey’s otherwise exemplary life before becoming involved in this check-kiting scheme does not render his actions, on their own, a single act of aberrant behavior to support a departure. Instead, we' believe that there must be some element of abnormal or exceptional behavior. Carey’s actions were apparently the result of extensive planning and were spread out over a fifteen-month period. A single act of aberrant behavior, however, generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is hot the result of a continued reflective process is one for which the defendant may be arguably less accountable. Carey, 895 F.2d at 325 (emphasis added); see also Williams, 974 F.2d at 26 (“‘aberrant behavior’ ... requires more than an act which is merely a first offense or ‘out of character’ for the defendant”; under Carey, requires spontaneity and thoughtlessness); Click, 946 F.2d at 338 (same). Under the Seventh Circuit’s view, the act must be “spontaneous and seemingly thoughtless.” Carey, 895 F.2d at 325. The district court adopted this majority view reasoning that the Ninth Circuit’s view, which looks to lack of prior convictions, improperly allowed any first-time offender to receive an aberrant behavior departure even though the Guidelines already adequately considers criminal history in the sentencing formula. See Takai, 941 F.2d at 738 (conduct of two defendants who had conspired and bribed immigration official in attempt to obtain green cards for friends over six week period constituted aberrant behavior given absence of pri- or convictions). The standard the district court adopted is the correct standard to apply in such a case. Aberrant behavior must involve a lack of planning; it must be a single act that is spontaneous and thoughtless, and no consideration is given to whether the defendant is a first-time offender. Therefore, the district court .did not err in adopting the standard as set forth by the majority of the courts of appeals which' requires that the conduct be “seemingly thoughtless and spontaneous.” See Carey, 895 F.2d at 325. The district court correctly applied" }, { "docid": "14363895", "title": "", "text": "F.2d 738, 743 (9th Cir.1991); United States v. Russell, 870 F.2d 18, 19-20 (1st Cir.1989). The Courts of Appeals for the Fourth, Fifth and Seventh Circuits have noted the possibility of an aberrant behavior departure; however, they have rejected the Ninth Circuit’s expansive view and refused to find aberrant behavior on the facts of the cases before them. See, e.g., United States v. Andruska, 964 F.2d 640, 644-46 (7th Cir.1992); United States v. Carey, 895 F.2d 318, 324-25 (7th Cir.1990); see also United States v. Williams, 974 F.2d 25, 26-27 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1320, 122 L.Ed.2d 706 (1993); United States v. Glick, 946 F.2d 335, 338 (4th Cir.1991). The majority of the courts of appeals have decided that aberrant behavior is a spontaneous single act that is unplanned. In Carey, the Seventh Circuit stated that: While the Guidelines provide no guidance as to what constitutes a single act of aberrant behavior, we believe that it must be more than merely something “out of character” or the defendant’s first offense. Carey’s otherwise exemplary life before becoming involved in this check-kiting scheme does not render his actions, on their own, a single act of aberrant behavior to support a departure. Instead, we' believe that there must be some element of abnormal or exceptional behavior. Carey’s actions were apparently the result of extensive planning and were spread out over a fifteen-month period. A single act of aberrant behavior, however, generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is hot the result of a continued reflective process is one for which the defendant may be arguably less accountable. Carey, 895 F.2d at 325 (emphasis added); see also Williams, 974 F.2d at 26 (“‘aberrant behavior’ ... requires more than an act which is merely a first offense or ‘out of character’ for the defendant”; under Carey, requires spontaneity and thoughtlessness); Click, 946 F.2d at 338 (same). Under the Seventh Circuit’s view, the act must be “spontaneous and seemingly thoughtless.” Carey, 895 F.2d" }, { "docid": "23082263", "title": "", "text": "(with respect to first offenders, “[t]he Commission ... has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures”); United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989) (“The Sentencing Commission made clear that departures are permitted in atypical cases[;] * * * [s]uch ‘aberrant behavior’ ... may justify departures in appropriate cases”). Although there are several reported decisions mentioning aberrant behavior in the context of first offenses, our research has disclosed only two cases which have squarely decided the question whether the facts of a particular first offense may warrant a finding of aberrant behavior justifying a downward departure. The first of these, United States v. Russell, supra, involved the driver of an armored truck who, as the result of a bank error, had a bag containing $80,000 in cash literally dumped in his lap. In a spontaneous act the driver temporarily yielded to the temptation to keep the money, but shortly thereafter confessed his wrongdoing, returned his share of the loot, and cooperated fully in the subsequent investigation. The Court of Appeals for the First Circuit held that the facts of the case warranted a finding of aberrant behavior but remanded to the district court for clarification of the lower court’s reasons for the sentence imposed. 870 F.2d at 20-21. The second case, United States v. Carey, supra, involved a defendant who had engaged in a check-kiting scheme over a period of at least fifteen months. The Court of Appeals for the Seventh Circuit held that, unlike the situation in Russell, the defendant’s actions could not be characterized as aberrant behavior because they consisted of hundreds of overt acts taking place over a prolonged period of time. 895 F.2d at 325. If Russell and Carey may be said to represent the terminal points on what, for lack of a better expression might be called the aberrant behavior spectrum, then the instant appeal would appear to fall somewhere between the two. Unfortunately, it is not clear from the record of the sentencing below whether the district court simply" }, { "docid": "12408943", "title": "", "text": "conduct in question must truly be a short-lived departure from an otherwise law-abiding life. We have approved aberrant behavior departures when the criminal conduct in ques tion lacked planning or reflection. See id. Colace, by contrast, had plenty of opportunity to reflect on his criminal conduct during the two months he flouted the law. He chose banks in different counties because, by his own admission, he was too well known in his home town, a decision that reflects planning and forethought. He did not withdraw from his criminal life-style until he was arrested. He committed the separate crime of fleeing probation and, again, did not cease his lawlessness until he was arrested eight months later. As we said in United States v. Green, 105 F.3d 1321, 1323 (9th Cir.1997), “[w]hile we have not required that the behavior be a single spontaneous or thoughtless act involving no planning, we have to some extent relied on the concept of ‘singularity or spontaneity.’ ” See also United States v. Lam, 20 F.3d 999, 1004 (9th Cir.1994) (“[C]alling a consistent criminal’s behavior aberrant would be an oxymoron”). A single episode of criminal conduct, normally a single crime, is another sign that an aberrant behavior departure may be warranted. Only very rarely do we permit aberrant behavior departures when the defendant committed more than one criminal act. See Lam, 20 F.3d at 1003 (departure appropriate when defendant didn’t know owning sawed-off shotgun was a crime, bought gun solely to protect pregnant sister in crime-ridden area, and only previous conviction was minor and totally unrelated); Takai, 941 F.2d at 743 (crimes-conspiraey to bribe an INS official and offering the official money-were “so closely related that for the purposes of deciding whether they were aberrant they constitute a single act.”). Colace’s case is nothing like Lam or Takai: Over a period of eleven weeks, he committed at least a dozen bank robberies, each requiring independent thought and planning, each putting a new set of victims in jeopardy, each yielding separate loot. And, there was his long flight from custody which, unlike the district court, we consider to" }, { "docid": "22979193", "title": "", "text": "(7th Cir.1992); Wind, 128 F.3d at 1278; Kalb, 105 F.3d at 429; United States v. Premachandra, 32 F.3d 346, 349 (8th Cir.1994); Garlich, 951 F.2d at 164; United States v. Bush, 126 F.3d 1298, 1301 (11th Cir.1997); United States v. Withrow, 85 F.3d 527, 531 (11th Cir.1996); Dyce, 91 F.3d at 1470. In Carey, the Seventh Circuit reversed a downward departure because the defendant’s actions “were apparently the result of extensive planning and were spread out over a fifteen-month period.” Id. at 325. An early First Circuit case, United States v. Russell, 870 F.2d 18 (1st Cir.1989), is often cited by majority jurisdictions as the “paradigmatic,” aberrant behavior case. See Rachael A. Hill, Comment, Character, Choice, and “Aberrant Behavior”: Aligning Criminal Sentencing With Concepts of Moral Blame, 65 U. Chi. L.Rev. 975 (1998). In Russell: the driver of a Wells Fargo armored truck, had no criminal record. A bank had mistakenly handed Russell’s partner, the truck’s messenger, an extra money bag containing $80,000. The men initially yielded to temptation and decided to keep the money. A week later, however, they admitted what they had done. Russell returned all the money that he had kept, and cooperated fully in the investigation of the crime. Russell, 870 F.2d at 19. A minority of circuits, ours, the First, Second, and Tenth, have allowed district courts to consider a variety of factors, including spontaneity, in determining whether the defendant’s actions constituted aberrant behavior. See United States v. Grandmaison, 77 F.3d 555, 561-64 (1st Cir.1996); Zecevic v. United States Parole Comm’n, 163 F.3d 731, 734-35 (2d Cir.1998); Martinez, 207 F.3d at 136; United States v. Dickey, 924 F.2d 836, 838 (9th Cir.1991); United States v. Takai, 941 F.2d 738, 743 (9th Cir.1991); United States v. Fairless, 975 F.2d 664, 667-68 (9th Cir.1992); United States v. Lam, 20 F.3d 999, 1003-04 (9th Cir.1994); Green, 105 F.3d at 1323; Colace, 126 F.3d at 1231; United States v. Pena, 930 F.2d 1486, 1495 (10th Cir.1991); United States v. Tsosie, 14 F.3d 1438, 1441 (10th Cir.1994); United States v. Jones, 158 F.3d 492, 500 (10th Cir.1998). The nonexclusive factors" }, { "docid": "22282537", "title": "", "text": "generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable. We have been able to find only one reported decision in which a defendant sought a downward departure, arguing that his behavior was a single act of aberrant behavior. This case, United States v. Russell, 870 F.2d 18 (1st Cir.1989), provides an excellent example of the type of behavior that a court may properly consider to be a single act of aberrant behavior (even though the court declined to do so). The defendant was a driver of a Wells Fargo armored truck who had no previous criminal record. A bank had mistakenly handed Russell’s partner, the truck’s messenger, an extra money bag containing $80,000. The men initially yielded to temptation and decided to keep the money. A week later, however, they admitted what they had done. Russell returned all of the money that he had kept, and cooperated fully in the investigation of the crime. He argued that the district court should impose a sentence below the guideline minimum because his conduct constituted a single act of aberrant behavior, no planning was involved, and he cooperated fully with the government and returned all the money. The district court refused to depart downward, although it did impose a sentence at the bottom of the applicable sentencing range. Id. at 20. The First Circuit affirmed the district court’s decision. The facts in Russell come closer to being a single act of aberrant behavior than those of the case at bar. Russell’s actions were unplanned and spontaneous; he was apparently overcome by the sudden intoxication of unexpected and immediate wealth. He committed only one act and returned the money soon after committing the offense. In contrast, Carey’s offense was planned and involved hundreds of overt acts over a long period of time. Carey’s behavior, standing alone, surely does not warrant a downward departure from the Guidelines under the" }, { "docid": "8086426", "title": "", "text": "government responds that an aberrant behavior departure cannot be employed when the defendant has committed a violent crime. We do not reach whether it is authorized in such cases, because the district court made a factual finding that Williams’ behavior was not aberrant. At the sentencing hearing, the district judge stated that he did not think that he had the authority to so depart, but later stated that Williams’ actions did “not qualify as aberrant behavior justifying departure”. As with any finding of fact, a district court’s determination that a circumstance which might warrant departure does not exist is reviewed for clear error. See United States v. Headrick, 963 F.2d 777, 779 (5th Cir.1992). Although the Guidelines do not define “aberrant behavior”, we are most certain that it requires more than an act which is merely a first offense or “out of character” for the defendant. Accord United States v. Carey, 895 F.2d 318, 325 (7th Cir.1990). Instead, those considerations are taken into account in calculating the defendant’s criminal history category. U.S.S.G. Ch. 4, Pt. A, intro. comment. & § 4A1.1. (For Williams, that category was I; the PSR stated that he had no criminal history points, in part because he did not have a prior criminal conviction.) As the Seventh Circuit has stated, there must be some element of abnormal or exceptional behavior.... A single act of aberrant behavior ... generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable. Carey, 895 F.2d at 325. Williams’ act appears neither spontaneous nor thoughtless. For example, one of his demand notes was dated several days before the robbery. We do not find clear error in the district court’s determination that this behavior does not qualify as aberrant. III. Accordingly, the sentence is AFFIRMED. The term \"aberrant behavior\" appears in the Guidelines only in an introductory section, \"Probation and Split Sentences”, where the Sentencing Commission states that" }, { "docid": "23602235", "title": "", "text": "not to the various acts involved. As a result, we read the Guidelines’ reference to “single acts of aberrant behavior” to include multiple acts leading up to the commission of a crime. See id. Any other reading would produce an absurd result. District courts would be reduced to counting the number of acts involved in the commission of a crime to determine whether departure is warranted. Moreover, the practical effect of such an interpretation would be to make aberrant behavior departures virtually unavailable to most defendants because almost every crime involves a series of criminal acts. Even the Russell defendant, whose spontaneous actions are widely regarded as a classic example of aberrant behavior, could be understood to have committed more than a single act of aberrant behavior. He conspired with his partner to take money from the armored truck he drove; took the money; and then kept the money for a short period of time. Thus, we think that focusing on the crime of conviction instead of the criminal acts committed in carrying out that crime best comports with what the Commission intended. The approach we now adopt does not unnecessarily expand opportunities for departure under the Guidelines. The totality of the circumstances test, though admittedly broader than the spontaneity test employed in Carey, is consistent with the Commission’s intention to limit applications of the aberrant behavior principle. See Andruska, 964 F.2d at 645. Concerns that it ensures every first offender a downward departure from their Guidelines-imposed sentence are without foundation. As the Ninth Circuit explained in United States v. Dickey, 924 F.2d 836 (9th Cir.1991), “aberrant behavior and first offense are not synonymous.” 924 F.2d at 838; see Click, 946 F.2d at 338. Without more, first-offender status is not enough to warrant downward departure. District courts are not, however, precluded from considering first-offender status as a factor in the departure calculus. Departure-phase consideration of a defendant’s criminal record does not, we think, wrongly duplicate the calculations involved in establishing a defendant’s criminal history category under the Guidelines. First, as we just noted, it is obviously not the case that" }, { "docid": "23602230", "title": "", "text": "check and frequently deposited them himself. The Seventh Circuit held that this behavior was not “aberrant.” 895 F.2d at 324-25. Uncertainty about the reason for the district court’s refusal to depart precluded this court from deciding that issue in Russell. Circuit courts are divided over where criminal conduct must fall on the aberrant behavior spectrum to justify downward departure. As we noted in Catucci some have adopted an expansive view of what aberrant behavior means in the context of the Guidelines, whereas others require a spontaneous or thoughtless act of the sort committed by the defendant in Russell. The Seventh Circuit’s decision in Carey provided the moorings for the latter group of circuits. The Carey court held that “[a] single act of aberrant behavior ... generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable.” 895 F.2d at 325. The Seventh Circuit later reinforced this tight interpretation in United States v. Andruska, 964 F.2d 640, 645-46 (7th Cir. 1992), a decision reversing a district court’s decision to depart downward in a case involving a woman found guilty of concealing her fugitive paramour from arrest. The Third, Fourth, Fifth, and Eighth Circuits have embraced the Seventh Circuit’s view of aberrant behavior. For example, in Marcello, supra, the Third Circuit explained that “there must be some element of abnormal or exceptional behavior” before adopting the Seventh Circuit’s spontaneity requirement and reversing the district court’s decision to depart downward. 13 F.3d at 761. The Marcello defendant was an attorney who, on seven separate occasions, structured bank deposits to avoid tax reporting requirements in violation of 31 U.S.C. §§ 5322(a), 5324(a)(3). He committed these offenses over the span of seven consecutive working days. Cases involving extensive planning or repeated criminal acts received similar treatment in the Fourth, Fifth, and Eighth Circuits. In United States v. Glicke, 946 F.2d 335, 338 (4th Cir.1991), the Fourth Circuit reversed a downward departure" } ]

[ { "docid": "1315288", "title": "", "text": "MEMORANDUM AND ORDER CROW, District Judge. This case comes before the court on plaintiff’s motion for stay of execution of judgment upon appeal. The court previously entered judgment in favor of the defendant, holding that the real property owned by the plaintiff is subject to fore closure and sale under the defendant’s statutory tax lien. The court subsequently denied the plaintiff’s motion to alter or amend the judgment. “Fed.R.Civ.P. 62(d) allows for a stay pending appeal if the appellant files a supersedeas bond. The stay is a matter of right.” United States v. Wylie, 730 F.2d 1401, 1402, n. 2 (11th Cir.1984). The general rule is for the district court to set a supersedeas bond in the full amount of the judgment plus interest, costs, and damages for delay. It is incumbent upon the moving party to objectively demonstrate good cause for any departure from this general rule. Poplar Grove, Etc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189 (5th Cir.1979). D.Kan. Rule 221 provides that “a supersedeas bond staying execution of a money judgment shall, unless the court otherwise directs, be in the amount of the judgment, plus 25% of that amount to cover interest and any award of damages for delay.” District courts have inherent discretionary authority in setting supersedeas bonds. Miami Intern. Realty Co. v. Paynter, 807 F.2d 871 (10th Cir.1986). Fed.R.Civ.P. 62 has been construed to apply to nonmonetary judgments as well as monetary judgements. See, e.g., J. Perez & Cia., Inc. v. United States, 578 F.Supp. 1318, 1320 (D.P.R.1984), aff'd on other grounds, 747 F.2d 813 (1st Cir.1984). The plaintiff offers a supersedeas bond, without surety, which promises payment of appeal costs of $500, and which commits her to continue to pay all ad valorem taxes and insure the real property against fire and other casualty. The offered bond also commits the plaintiff to refrain from selling, assigning, transferring, conveying, or encumbering the real property. The defendant agrees that a bond for the full value of the property is unnecessary because a lien in its favor now exists on the house. The defendant argues however," } ]

[ { "docid": "5782628", "title": "", "text": "17 L.Ed.2d 37 (1966); United States v. Wylie, 730 F.2d 1401, 1402 n. 2 (11th Cir.1984). The purpose of requiring a supersedeas bond is to “secure an appellee from loss resulting from the stay of execution.” See Miami Intern. Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir.1986). This court has inherent discretionary authority in setting supersedeas bonds. Id. (citation omitted). “It is appellant’s burden to demonstrate objectively that posting a full bond is impossible or impractical and to propose a plan that would provide adequate security for the appellee.” United States v. Kurtz, 528 F.Supp. 1113, 1115 (E.D.Pa.), aff’d., 688 F.2d 827 (3d Cir.), cert. denied, 459 U.S. 991, 103 S.Ct. 347, 74 L.Ed.2d 387 (1982). Pursuant to D.Kan. Rule 221, the court generally sets a supersedeas bond in the amount of the judgment plus 25% of that amount to cover interest and any award of damages for delay. Any deviation from this rule will only be permitted to the extent that movant has objectively demonstrated good cause. Metz v. United States, 130 F.R.D. 458, 459 (D.Kan.1990) (citing Poplar Grove, etc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir.1979)). Defendant first argues that pursuant to Rule 69(a) of the Federal Rules of Civil Procedure and K.S.A. 13-1407, defendant, as a municipality, is exempt from posting a supersedeas bond. The court finds defendant’s argument to be without merit. Specifically, the court finds that Rule 69(a) merely addresses the manner of execution of a judgment; it does not address whether the posting of a supersedeas bond pending an appeal is required. Thus, the court finds no basis for defendant’s assertion that Rule 69(a) incorporates the provisions of K.S.A. 13-1407 which, defendant argues, exempts municipalities from posting a supersedeas bond. Defendant next argues that even if the City of Shawnee were not exempt from the requirement of posting a supersedeas bond, the court, in its discretion, should waive the supersedeas bond requirement. In support of its claim, defendant first argues that the judgment is secured by the taxing power of the defendant which could be compelled by a" }, { "docid": "23346700", "title": "", "text": "8, 1987. Subsequently, after the district court’s final April 30, 1993 sanction order, on September 30, 1993, the defendants posted a supersedeas bond in the amount of $402,527.98, the total amount of the sanction. The defendants filed their supersedeas bond pursuant to Fed.R.Civ.P. 62(d) to stay the district court’s judgment against them pending appeal to this court. The purpose of requiring a supersedeas bond pending appeal “is to secure the judgment throughout the appeal process against the possibility of the judgment debtor’s insolvency.” Grubb v. FDIC, 833 F.2d 222, 226 (10th Cir.1987); Miami Int’l Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir.1986). Typically, the amount of the bond matches the full amount of the judgment. Id.; Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133, 1155 (2d Cir.1986), rev’d on other grounds, 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). We have recog nized, “[district courts, however, have inherent discretionary .authority in setting super-sedeas bonds.” Miami Int'l, 807 F.2d at 873. Accordingly, in Miami Int’l, we affirmed the district court’s decision not to require a supersedeas bond in the full amount of the judgment. Id. at 874. The instant case presents the opposite factual scenario. The combination of the two bonds results in insolvency protection for Mr. 01-cott in excess of the amount of his judgment. We fail to understand the necessity of maintaining the original $50,000 bond after the defendants posted their second bond in the full amount of the judgment. Therefore, we reverse the district court’s decision not to exonerate the $50,000 bond. VII. The district court’s orders are AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings consistent with this opinion. . Throughout this opinion, we refer to all the corporate and individual defendants collectively as \"the defendants.” When we refer to any of the defendants individually, we do so by name. . In their brief, Layton Oil Company and William Douglas Layton adopt the arguments made by Delaware Flood Company and Michael Galesi. . The amended statute provides: 15 U.S.C. § 78aa-l. Special provision relating to statute of limitations on private" }, { "docid": "10004013", "title": "", "text": "of the bond would be a waste of money; and ... where the requirement would put the defendant’s other creditors in undue jeopardy.” Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794, 796 (7th Cir.1986). When an appellant claims its ability to pay the judgment is so obvious that posting a bond would simply be a waste of money, courts have generally required the appellant to present “a financially secure plan for maintaining that same degree of solvency during the period of an appeal.” Poplar Grove, 600 F.2d at 1190. However, because Rule 62(d) expressly dictates that a supersedeas bond must be posted, only in “extraordinary circumstances” should anything less be required. C. Albert Sauter Co. v. Richard S. Sauter Co., 368 F.Supp. 501, 520 (E.D.Pa.1973). In this case, Defendants’ only argument is that readily available funds exist to satisfy the judgment, and that part of the judgment will be satisfied by an insurance company which possesses funds in excess of the entire judgment. However, even if Defendants demonstrated the existence of funds in excess of the judgment, waiving the bond on this factor alone ignores the dual protections Rule 62(d) is designed to provide the appellee. Waiving the bond requirement would deprive Mr. Hamlin of his right to execute the judgment immediately, without providing him the protection to which he is entitled. Rule 62(d)’s bond requirement serves a substantial function in balancing the parties’ interest and is not a mere formality that should be waived simply because the losing party has adequate funds to satisfy the judgment. Ideally, losing parties will always have sufficient funds to pay the award, but if this fact alone were enough to waive the bond requirement, the bond requirement would essentially be a nullity. Defendants have the burden of proving not merely that they are capable of satisfying the judgment, but rather that their ability to do so is so plain that requiring a bond would simply be a waste of money. In light of the protection and compensation that the bond would provide to Mr. Hamlin, the cost of the" }, { "docid": "7514457", "title": "", "text": "supersedeas bond. The state doesn’t want to post a bond, however, and asked the district judge to excuse it from doing so, on the ground that the State of Illinois is solvent. Unquestionably it is; and the payment of a $700,000 judgment (should the state lose the appeal) will not endanger that solvency. The district judge can in his discretion stay the execution of a judgment pending appeal without requiring a bond, Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794, 796 (7th Cir.1986), but this judge declined to do so, noting that the procedure for collecting a judgment from the State of Illinois is cumbersome and uncertain. That procedure is described in Preston v. Thompson, 565 F.Supp. 310, 318 (N.D.Ill. 1983). Cf. Strama v. Peterson, 537 F.Supp. 668 (N.D.Ill.1982). The state’s argument for being excused from posting a bond is a non sequitur. The fact that the state has the financial wherewithal to pay a judgment for $700,-000 can be of little solace to the plaintiffs when the state does not contest Judge Marshall’s finding in Preston that the procedure for collecting a judgment against the state is not only cumbersome and time-consuming, but uncertain in outcome, since the judgment cannot be paid unless and until the state legislature votes to appropriate the money necessary to pay it. The philos ophy underlying Rule 62(d) is that a plaintiff who has won in the trial court should not be put to the expense of defending his judgment on appeal unless the defendant takes reasonable steps to assure that the judgment will be paid if it is affirmed. Posting a supersedeas bond is the simplest way of tendering this guaranty but in appropriate cases alternative forms of security are allowed, especially when (as in Olympia) the requirement of obtaining a bond might imperil other creditors of the defendant. That is not a factor in this case. The only factor is the cost of the bond. The cost is usually one percent of the amount of the bond, and so in this case would be $7,000. This is a" }, { "docid": "12938187", "title": "", "text": "and be willing to present to the court a financially secure plan for maintaining that same degree of solvency during the appeal.” See Poplar Grove Planting and Refining Co., Inc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979). For this reason, the Tenth Circuit affirmed a district court’s requirement of the posting of substitute collateral in a case similar to the one here. See Miami Intern. Realty Co. v. Paynter, 807 F.2d 871, 874 (10th Cir.1986). Paynter involved an attorney who faced a $2.1 million malpractice verdict. The attorney, who three days after the verdict drained his checking account and went to Las Vegas to gamble away $60,000.00, had no assets to secure the award. He requested a stay without posting a bond, contending that posting a bond would render him insolvent. The district court then ordered the attorney to deposit the proceeds of his malpractice insurance, which totalled about one-quarter of the judgment, into the court’s treasury in order to obtain a stay. Id. at 872-873. The Tenth Circuit affirmed the district court, finding that the security posted protected the judgment creditors and did not irreparably injure the judgment debtor. Id. at 873 (citing Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133, 1154-1155 (2nd Cir. 1986)). The movants’ admitted precarious financial condition, therefore, defeats their contention that this case is a rare instance where a bond is unnecessary or alternative collateral properly could be posted. The Institute’s financial statements and Mr. Simpkin’s affidavit reveal that the Institute will have difficulty maintaining the same state of solvency through the appellate process. Accordingly, the court must require the movant’s to post a supersedeas bond. To determine the specific amount of the bond, which is generally reserved to the sound discretion of the district judge, see Federal Prescription Service, Inc., 636 F.2d at 758-759, the court turns to the predecessor of present Fed.R.Civ.P. 62(d), “old” Civil Rule 73(d). Old Civil Rule 73(d) directed that the amount of the bond be computed to include “the whole amount of the judgment remaining unsatisfied, costs of the appeal, interest, and damages" }, { "docid": "5639591", "title": "", "text": "the stay of execution; consequently, the courts normally require a full supersedeas bond. Miami Intern. Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir.1986). “The posting of a bond protects the prevailing plaintiff from the risk of a later uncollectible judgment and compensates him for delay in the entry of final judgment.” Hebert, 953 F.2d at 938 (quoting N.L.R.B. v. Westphal, 859 F.2d 818, 819 (9th Cir.1988)). The local rules of this court require an appellant to post a supersedeas bond in the amount of the judgment plus 25%. D.Kan.Rule 221. Waiver of this requirement occurs only upon the appellant objectively demonstrating good cause. Laman v. City of Shawnee, Kan., 758 F.Supp. 654, 655 (D.Kan.1991), reconsideration denied, 1991 WL 105211 (D.Kan. May 10, 1991); Metz v. U.S., 130 F.R.D. 458, 459 (D.Kan.1990). District courts have inherent discretionary authority in setting supersede-as bonds. Miami Intern. Realty Co., 807 F.2d at 873. As delineated by the Seventh Circuit, there are several factors relevant in deciding whether to waive a full supersedeas bond requirement: (1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that the district court has in the availability of funds to pay the judgment (see Lightfoot [v. Walker], 797 F.2d [505] at 506 [(7th Cir.1986) ] (noting that the “procedure for collecting a judgment against the State [of Illinois] is not only cumbersome and time consuming, but uncertain in outcome, since the judgment cannot be paid unless and until the State legislature votes to appro priate the money necessary to pay it”)); (4) whether “the defendant’s ability to pay the judgment is so plain that the cost of a bond would be a waste of money’-’ (Olympia Equipment [v. Western Union Telegraph Co.], 786 F.2d [794] at 796 [(7th Cir.1986)]; see also [Northern Indiana Public Service v.] Carbon County Coal Co., 799 F.2d [265] at 281 [7th Cir.1986] (finding that the appellant, a public utility, was solvent and “good for” the judgment)); and (5) whether the defendant is in such" }, { "docid": "5782627", "title": "", "text": "MEMORANDUM AND ORDER SAFFELS, District Judge. This matter is before the court on motion of the defendant City of Shawnee, Kansas for an order staying enforcement of the judgment entered on January 4, 754 F.Supp. 1518 1991 in the above-captioned case. Defendant seeks a stay pending disposition of the appeal taken in this case without posting a supersedeas bond. Rule 62(d) of the Federal Rules of Civil Procedure provides: When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay.... The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court. “A party taking an appeal from federal district court is entitled to a stay of money judgment as a matter of right if he posts bond in accordance with these rules.” American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 385 U.S. 931, 87 S.Ct. 1, 2, 17 L.Ed.2d 37 (1966); United States v. Wylie, 730 F.2d 1401, 1402 n. 2 (11th Cir.1984). The purpose of requiring a supersedeas bond is to “secure an appellee from loss resulting from the stay of execution.” See Miami Intern. Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir.1986). This court has inherent discretionary authority in setting supersedeas bonds. Id. (citation omitted). “It is appellant’s burden to demonstrate objectively that posting a full bond is impossible or impractical and to propose a plan that would provide adequate security for the appellee.” United States v. Kurtz, 528 F.Supp. 1113, 1115 (E.D.Pa.), aff’d., 688 F.2d 827 (3d Cir.), cert. denied, 459 U.S. 991, 103 S.Ct. 347, 74 L.Ed.2d 387 (1982). Pursuant to D.Kan. Rule 221, the court generally sets a supersedeas bond in the amount of the judgment plus 25% of that amount to cover interest and any award of damages for delay. Any deviation from this rule will only be permitted to the extent that movant has objectively demonstrated good cause. Metz v. United States, 130" }, { "docid": "4550099", "title": "", "text": "At least one sister court has held that several additional factors are relevant in determining whether to waive or modify the bond requirement, including: (1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence the district court has in the availability of funds to pay the judgment; (4) whether the defendant’s ability to pay the bond is so plain that the cost of a bond would be a waste of money; (5) whether the defendant is in such a precarious financial position that the re quirement to post a bond would place other creditors of the defendant in an insecure position. Halliburton Energy Servs., Inc. v. NL Indus., Nos. H-05-4160, H-06-3504, 2008 WL 2787247, at *2 (S.D.Tex. July 16, 2008). Two of these factors particularly favor modifying the bond requirements in this case. First, if there are other assets in addition to the SCC stock that could satisfy this judgment, the actual location of those assets is probably outside the United States, and so collection of the monetary portion of the judgment could be especially complex. Second, the Court is satisfied that the bonding arrangements described herein will secure the assets necessary to pay any ultimate judgment debtors in this case, i.e., ASARCO’s creditors, in the event of an unsuccessful appeal. Moreover, by preserving AMC’s ability to obtain the financing necessary to submit its reorganization plan in the bankruptcy proceeding, the Court’s bonding terms will facilitate extra competition among bidders for ASARCO’s assets, the benefit of which will likely redound to ASARCO’s creditors. Finally, and perhaps most importantly, it has been held that “only extraordinary circumstances will support the provision of security other than a supersedeas bond.” United States v. Kurtz, 528 F.Supp. 1113, 1115 (E.D.Pa.1981) (citing, inter alia, Poplar Grove) (internal quotations omitted). The Court finds that the circumstances of this particular case are indeed extraordinary in several ways. First, as testified to at the hearing, the current global credit crisis makes securing a supersedeas bond in an amount approaching $1.4" }, { "docid": "12938183", "title": "", "text": "ORDER ON MOTION FOR STAY AND SETTING TERMS OF SUPERSEDEAS JAMES LAWRENCE KING, Chief Judge. Before the court is the movants’ motion for a stay from execution of this court’s judgment dated February 2, 1989, 705 F.Supp. 1544. In that order the court ordered reimbursement of costs and fees to the defendants that totalled $1,034,361.36. The movants desire a stay without the posting of a supersedeas bond, or in the alternative, a stay with a posting of some alternative security. The defendants argue that a stay pending appeal should only be issued once the movants post a supersede-as bond in the full amount of the judgment. All parties have briefed the relevant issues in detail and made the necessary financial disclosures. A literal reading of Fed.R.Civ.P. 62(d) indicates that a court can issue a stay pending appeal only when the judgment debtor posts a supersedeas bond. See Moore, J. and Jucas, J.D., 7 Moore’s Federal Practice, § 62.06 at 62-31 (2d ed. 1987). The only exceptions to this rule appear to be the special cases of Fed.R.Civ.P. 62(a), which are actions involving injunctions, receiverships or patent accountings. Federal courts today generally follow Fed.R.Civ.P. 62(d) unless a case presents one of two rare instances. See Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794 (7th Cir.1986). See also Federal Prescription Service, Inc. v. American Pharmaceutical Assoc., 636 F.2d 755 (D.C.Cir. 1980). In these two circumstances the posting of a bond to secure a stay pending appeal is inappropriate: (1) where the defendant’s ability to pay the judgment is so plain that the cost of the bond would be a waste of money, and, (2) where the requirement would put the defendant’s other creditors in undue jeopardy. Olympia Equipment, 786 F.2d at 796 (citing authority). In such a case, the district court may grant the stay without the posting of any security, or accept a form of alternative security. See Federal Prescription Service, Inc., 636 F.2d 755, 758 (D.C.Cir.1980); Poplar Grove Planting and Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir.1979). The movants argue" }, { "docid": "18780477", "title": "", "text": "appeal is that he be “secure ... from loss resulting from the stay of exe-cution____” In making that determination we look to general equitable principles. Accordingly, when setting superse-deas bonds courts seek to protect judgment creditors as fully as possible without irreparably injuring judgment debtors ____ A full supersedeas bond may be required “where there is some reasonable likelihood of the judgment debtor’s inability or unwillingness to satisfy the judgment in full upon ultimate disposition of the case and where posting adequate security is practicable”, whereas no bond or a reduced bond would suffice when the creditor’s interest, due to unusual circumstances, would not be unduly endangered____ See: Wunschel & Small, Inc., v. United States, 554 F.Supp. 444-45 (U.S.Cl.O.1983) (Rule 62(d) does not preclude the court from issuing a stay without a bond or upon the posting of a partial bond); United States v. Kurtz, 528 F.Supp. 1113, 1115 (D.Pa.1981) (it is appellant’s burden to demonstrate objectively that posting a full bond is impossible or impractical and “to propose a plan that will provide adequate (or as adequate as possible) security for the appellee”); C. Albert Sauter Co. v. Richard S. Sauter Co., 368 F.Supp. 501, 520-21 (E.D.Pa.1973) (stay of execution granted on basis of security agreement involving far less than a full supersedeas bond, following defendants’ showing of lack of sufficient assets to satisfy the judgment or to obtain a bond in amount thereof and that execution of the judgment would place each of the defendants in insolvency). We hold that the district court’s stay was valid under Rule 62(d). The court did not err in granting a stay without a supersedeas bond for the full amount of Miami’s judgment inasmuch as: Paynter’s motion for a stay was supported by an affidavit in which Paynter stated that he did not have sufficient assets to post a supersedeas bond for $1,600,000 above his malpractice coverage insurance of $500,000 (and thereby fully cover Miami’s $2,100,000 judgment) and that execution of the judgment would cause him irreparable harm and place him in insolvency; on March 10, 1986, the district court, following a" }, { "docid": "4550098", "title": "", "text": "cash bond would impose an undue financial burden and that ASARCO’s need for security can be satisfied by alternative means. The Court heard testimony that it would be extremely difficult, if not impossible, for AMC to provide the collateral necessary to both post a full supersedeas bond and finance its reorganization plan in the bankruptcy proceeding. Thus, if this Court were to require AMC to post a full bond, ASARCO’s creditors would be denied the benefit of competition among three, rather than two, plans for creditor support. On many previous occasions in this case, this Court has noted that on a number of issues, ASARCO was standing in the shoes of its creditors and was acting for their benefit. The Court cannot now take an inconsistent view. In this sense, the burden placed on AMC by requiring a full bond would be undue to the extent that ASARCO’s creditors, the ultimate judgment debtors in this case, would be harmed by losing the benefit of having a third reorganization plan on which to leverage their interests. At least one sister court has held that several additional factors are relevant in determining whether to waive or modify the bond requirement, including: (1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence the district court has in the availability of funds to pay the judgment; (4) whether the defendant’s ability to pay the bond is so plain that the cost of a bond would be a waste of money; (5) whether the defendant is in such a precarious financial position that the re quirement to post a bond would place other creditors of the defendant in an insecure position. Halliburton Energy Servs., Inc. v. NL Indus., Nos. H-05-4160, H-06-3504, 2008 WL 2787247, at *2 (S.D.Tex. July 16, 2008). Two of these factors particularly favor modifying the bond requirements in this case. First, if there are other assets in addition to the SCC stock that could satisfy this judgment, the actual location of those assets is" }, { "docid": "12066728", "title": "", "text": "foreclosed the possibility of issuing a stay pending appeal for the fees and costs. The City has therefore applied to this court for a stay of the execution of both the judgment and the payment of fees and costs pending appeal. II The law in this area is clear, having been the subject of three opinions in this court over the last two years. See Northern Indiana Public Service v. Carbon County Coal, 799 F.2d 265 (7th Cir.1986) (waiving the requirement of bond pending appeal where the appellant was a solvent public utility, with net worth well in excess of the judgment); Lightfoot v. Walker, 797 F.2d 505 (7th Cir.1986) (establishing guidelines for determination of when waiver of bond is appropriate, and finding State of Illinois procedures for payment of judgments inadequate to justify waiver of bond); and Olympia Equipment v. Western Union Telegraph Co., 786 F.2d 794 (7th Cir.1986) (modifying and affirming the district court’s alternative security to posting a supersedeas bond). The applicable standard of review in this area is an abuse of discretion. “Responsibility for deciding whether to require a bond as a condition of staying execution of the judgment pending appeal is vested initially in the district judge, and we shall reverse his decision only if convinced that he has acted unreasonably.” Lightfoot, 797 F.2d at 507. Rule 62(d) of the Federal Rules of Civil Procedure allows an appellant to obtain an automatic stay of execution of judgment pending appeal by posting a bond. In the alternative, the appellant may move that the district court employ its discretion to waive the bond requirement. Carbon County Coal, 799 F.2d at 281. When determining whether to waive the posting of bond, the district court may look to several criteria enumerated by this court: (1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that the district court has in the availability of funds to pay the judgment {see Lightfoot, 797 F.2d at 506 (noting that the “procedure for collecting a" }, { "docid": "12066729", "title": "", "text": "discretion. “Responsibility for deciding whether to require a bond as a condition of staying execution of the judgment pending appeal is vested initially in the district judge, and we shall reverse his decision only if convinced that he has acted unreasonably.” Lightfoot, 797 F.2d at 507. Rule 62(d) of the Federal Rules of Civil Procedure allows an appellant to obtain an automatic stay of execution of judgment pending appeal by posting a bond. In the alternative, the appellant may move that the district court employ its discretion to waive the bond requirement. Carbon County Coal, 799 F.2d at 281. When determining whether to waive the posting of bond, the district court may look to several criteria enumerated by this court: (1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that the district court has in the availability of funds to pay the judgment {see Lightfoot, 797 F.2d at 506 (noting that the “procedure for collecting a judgment against the State [of Illinois] is not only cumbersome and time consuming, but uncertain in outcome, since the judgment cannot be paid unless and until the State legislature votes to appropriate the money necessary to pay it”)); (4) whether “the defendant’s ability to pay the judgment is so plain that the cost of a bond would be a waste of money” (Olympia Equipment, 786 F.2d at 796; see also Carbon County Coal, 799 F.2d at 281 (finding that the appellant, a public utility, was solvent and “good for” the judgment)); and (5) whether the defendant is in such a precarious financial situation that the requirement to post a bond would place other creditors of the defendant in an insecure position (Olympia Equipment, 786 F.2d at 796). Applying these principles to the present case leads to the conclusion that the City should not be required to post bond, or other alternate security, to obtain a stay of the execution of the judgment or payment of fees and costs. Ill The City presents a strong case" }, { "docid": "18780476", "title": "", "text": "that the court abused its discretion in granting Paynter’s stay of execution with a supersedeas bond of less than the full amount of its judgment when, as here, there was no objective showing that posting a bond for the full amount of the judgment was impracticable, no adequate equivalent security was provided, and the evidence clearly established that its judgment was in jeopardy. Miami is correct in arguing that the purpose of a supersedeas bond is to secure an appellee from loss resulting from the stay of execution and that a full supersedeas bond should be the requirement in normal circumstances. See, Poplar Grove Planting and Refinery Co., Inc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir.1979); Federal Prescription Service, Inc. v. American Pharmaceutical Association, 636 F.2d 755, 760 (D.C.Cir. 1980). District courts, however, have inherent discretionary authority in setting supersedeas bonds. In Texaco, Inc., v. Pennzoil Company, 784 F.2d 1133, 1154, 1155 (2d Cir.1986), the court stated: A judgment creditor’s primary concern when a judgment in his favor is stayed pending appeal is that he be “secure ... from loss resulting from the stay of exe-cution____” In making that determination we look to general equitable principles. Accordingly, when setting superse-deas bonds courts seek to protect judgment creditors as fully as possible without irreparably injuring judgment debtors ____ A full supersedeas bond may be required “where there is some reasonable likelihood of the judgment debtor’s inability or unwillingness to satisfy the judgment in full upon ultimate disposition of the case and where posting adequate security is practicable”, whereas no bond or a reduced bond would suffice when the creditor’s interest, due to unusual circumstances, would not be unduly endangered____ See: Wunschel & Small, Inc., v. United States, 554 F.Supp. 444-45 (U.S.Cl.O.1983) (Rule 62(d) does not preclude the court from issuing a stay without a bond or upon the posting of a partial bond); United States v. Kurtz, 528 F.Supp. 1113, 1115 (D.Pa.1981) (it is appellant’s burden to demonstrate objectively that posting a full bond is impossible or impractical and “to propose a plan that will provide adequate" }, { "docid": "22451267", "title": "", "text": "West to obtain a stay of execution of the judgment, West must give a supersedeas bond pursuant to Fed. R.Civ.P. 62(d). This court reviews a district court’s denial of a supersedeas bond for an abuse of discretion. Kennedy v. Uniroyal Pension Plan, 937 F.2d 608, 1991 WL 134613, at *8 (6th Cir.1991) (unpublished). Rule 62(d) entitles a party who files a satisfactory supersedeas bond to a stay of money judgment as a matter of right. Federal Prescription Serv., Inc. v. Am. Pharm. Ass’n, 636 F.2d 755, 759 (D.C.Cir.1980) (citing Am. Mfr. Mut. Ins. Co. v. Am. Broad. Paramount Theatres, Inc., 385 U.S. 931, 87 S.Ct. 291, 17 L.Ed.2d 213 (1966)). However, “the Rule in no way necessarily implies that filing a bond is the only way to obtain a stay. It speaks only to stays granted as a matter of right, it does not speak to stays granted by the court in accordance with its discretion.” Id. Arban claims that West must make “at least a showing that it has adequate resources to satisfy the bond.” West has done so here. At the hearing on West’s motion for stay without bond on April 25, 2001, counsel for West stated that “the revenues of the group of which West is a part is approximately 2.5 billion.” The Seventh Circuit has noted that “an inflexible requirement of a bond would be inappropriate ... where the defendant’s ability to pay the judgment is so plain that the cost of the bond would be a waste of money.” Olympia Equip. Leasing Co. v. Western Union Tel. Co., 786 F.2d 794, 796 (7th Cir.1986). In light of the vast disparity between the amount of the judgment in this case and the annual revenue of the group of which West is a part, the district court’s decision to grant a stay without a bond was not an abuse of discretion. VII. For all of the foregoing reasons, we affirm the district court’s denial of West’s motion for judgment as a matter of law or for a new trial, reverse and remand the trial court’s denial of" }, { "docid": "5639590", "title": "", "text": "MEMORANDUM AND ORDER CROW, District Judge. The case comes before the court on another post-trial matter; Pursuant to Fed. R.Civ.P. 62(d) and Fed.R.App.P. 7 and 8, the defendant moves for an order staying enforcement of the judgment for actual and liquidated damages and any subsequent attorney’s fees proceedings. The defendant seeks a stay without posting a supersedeas bond. The only argument made in support of relieving the defendant from the bond requirement is that there exists “an adequate procedure” for collecting judgments against a state agency or department like the defendant. The plaintiffs oppose lifting the bond requirement because there is no established procedure for judgments on actions brought under the Fair Labor Standards Act. Under Rule 62(d), an appellant has a right to stay the enforcement of a money judgment upon posting a supersedeas bond. Hebert v. Exxon Corp., 953 F.2d 936, 938 (5th Cir.1992); see American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 87 S.Ct. 1, 2, 17 L.Ed.2d 37 (1966). A supersedeas bond secures the appellee from loss resulting from the stay of execution; consequently, the courts normally require a full supersedeas bond. Miami Intern. Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir.1986). “The posting of a bond protects the prevailing plaintiff from the risk of a later uncollectible judgment and compensates him for delay in the entry of final judgment.” Hebert, 953 F.2d at 938 (quoting N.L.R.B. v. Westphal, 859 F.2d 818, 819 (9th Cir.1988)). The local rules of this court require an appellant to post a supersedeas bond in the amount of the judgment plus 25%. D.Kan.Rule 221. Waiver of this requirement occurs only upon the appellant objectively demonstrating good cause. Laman v. City of Shawnee, Kan., 758 F.Supp. 654, 655 (D.Kan.1991), reconsideration denied, 1991 WL 105211 (D.Kan. May 10, 1991); Metz v. U.S., 130 F.R.D. 458, 459 (D.Kan.1990). District courts have inherent discretionary authority in setting supersede-as bonds. Miami Intern. Realty Co., 807 F.2d at 873. As delineated by the Seventh Circuit, there are several factors relevant in deciding whether to waive a full supersedeas bond requirement: (1) the complexity" }, { "docid": "10004012", "title": "", "text": "Therefore, Mr. Hamlin’s appeal does not automatically suspend enforcement of the judgment. B. Waiver of Bond Requirement The second issue before the Court is whether the bond requirement should be waived. Although Courts generally require that a full bond be posted to obtain a stay pursuant to Rule 62(d), a court may, in its discretion, modify or even waive the full bond requirement. Townsend v. Holman Consulting Corporation, 929 F.2d 1358, 1367 (1991); Federal Prescription Service, Inc. v. American Pharm. Assn., 636 F.2d 755, 758 (D.C.Cir.1980). However, should a court choose “to depart from the usual requirement' of a full security supersedeas bond ... it should place the burden on the moving party to objectively demonstrate the reasons for such a departure.” Poplar Grove Planting and Refining, Co., v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979). The opposing party has no obligation to introduce evidence to the contrary. A waiver of the bond requirement may be appropriate “where the defendant’s ability to pay the judgment is so plain that the cost of the bond would be a waste of money; and ... where the requirement would put the defendant’s other creditors in undue jeopardy.” Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794, 796 (7th Cir.1986). When an appellant claims its ability to pay the judgment is so obvious that posting a bond would simply be a waste of money, courts have generally required the appellant to present “a financially secure plan for maintaining that same degree of solvency during the period of an appeal.” Poplar Grove, 600 F.2d at 1190. However, because Rule 62(d) expressly dictates that a supersedeas bond must be posted, only in “extraordinary circumstances” should anything less be required. C. Albert Sauter Co. v. Richard S. Sauter Co., 368 F.Supp. 501, 520 (E.D.Pa.1973). In this case, Defendants’ only argument is that readily available funds exist to satisfy the judgment, and that part of the judgment will be satisfied by an insurance company which possesses funds in excess of the entire judgment. However, even if Defendants demonstrated the existence of" }, { "docid": "5639592", "title": "", "text": "of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that the district court has in the availability of funds to pay the judgment (see Lightfoot [v. Walker], 797 F.2d [505] at 506 [(7th Cir.1986) ] (noting that the “procedure for collecting a judgment against the State [of Illinois] is not only cumbersome and time consuming, but uncertain in outcome, since the judgment cannot be paid unless and until the State legislature votes to appro priate the money necessary to pay it”)); (4) whether “the defendant’s ability to pay the judgment is so plain that the cost of a bond would be a waste of money’-’ (Olympia Equipment [v. Western Union Telegraph Co.], 786 F.2d [794] at 796 [(7th Cir.1986)]; see also [Northern Indiana Public Service v.] Carbon County Coal Co., 799 F.2d [265] at 281 [7th Cir.1986] (finding that the appellant, a public utility, was solvent and “good for” the judgment)); and (5) whether the defendant is in such a precarious financial situation that the requirement to post a bond would place other creditors of the defendant in an insecure position (Olympia Equipment, 786 F.2d at 796). Dillon v. City of Chicago, 866 F.2d 902, 904-05 (7th Cir.1988). Generally, courts are reluctant to waive the bond requirement for a governmental entity unless funds are readily available, such as through a general appropriation, and a procedure is in place for paying the judgment. See Dillon, 866 F.2d at 905 (waived bond requirement because the city established by affidavit that an existing fund guaranteed the appellee’s judgment and that payment would be processed in less than thirty days); Lightfoot v. Walker, 797 F.2d at 506-07 (upheld bond requirement because state had no established fund and collection depended upon the legislature appropriating the money to pay the judgment); Laman v. City of Shawnee, Kan., 758 F.Supp. at 656— 57 (required bond as the city had not set aside a fund to pay such judgment debts and payment could subject the plaintiffs to a “cumbersome and time-consuming” process);" }, { "docid": "23346699", "title": "", "text": "was to ensure money to pay the sanction would be available. The tenor of the second sentence of the district court’s April 30, 1993 order leads to this speculation. However, our speculation remains just that. We have no informed basis for evaluating the propriety of the district court’s action because in the end we are left guessing as to the court’s purpose. We remand this issue to the district court to reevaluate its rationale for not releasing these funds based on the changed landscape of this opinion and explain its reasoning in detail. VI. Finally, the defendants argue the $402,527.98 supersedeas bond they filed to appeal the district court’s sanction order supersedes the earlier $50,000 bond the court ordered on March 17, 1987. The defendants assert the second bond adequately protects Mr. Oleott’s interests rendering the first bond unnecessary. We agree. Originally, in a minute order of March 17, 1987, in conjunction with its original sanction against the defendants, the district court ordered them to post a $50,000 bond. The bond was posted on June 8, 1987. Subsequently, after the district court’s final April 30, 1993 sanction order, on September 30, 1993, the defendants posted a supersedeas bond in the amount of $402,527.98, the total amount of the sanction. The defendants filed their supersedeas bond pursuant to Fed.R.Civ.P. 62(d) to stay the district court’s judgment against them pending appeal to this court. The purpose of requiring a supersedeas bond pending appeal “is to secure the judgment throughout the appeal process against the possibility of the judgment debtor’s insolvency.” Grubb v. FDIC, 833 F.2d 222, 226 (10th Cir.1987); Miami Int’l Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir.1986). Typically, the amount of the bond matches the full amount of the judgment. Id.; Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133, 1155 (2d Cir.1986), rev’d on other grounds, 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). We have recog nized, “[district courts, however, have inherent discretionary .authority in setting super-sedeas bonds.” Miami Int'l, 807 F.2d at 873. Accordingly, in Miami Int’l, we affirmed the district court’s decision not" }, { "docid": "12938184", "title": "", "text": "of Fed.R.Civ.P. 62(a), which are actions involving injunctions, receiverships or patent accountings. Federal courts today generally follow Fed.R.Civ.P. 62(d) unless a case presents one of two rare instances. See Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794 (7th Cir.1986). See also Federal Prescription Service, Inc. v. American Pharmaceutical Assoc., 636 F.2d 755 (D.C.Cir. 1980). In these two circumstances the posting of a bond to secure a stay pending appeal is inappropriate: (1) where the defendant’s ability to pay the judgment is so plain that the cost of the bond would be a waste of money, and, (2) where the requirement would put the defendant’s other creditors in undue jeopardy. Olympia Equipment, 786 F.2d at 796 (citing authority). In such a case, the district court may grant the stay without the posting of any security, or accept a form of alternative security. See Federal Prescription Service, Inc., 636 F.2d 755, 758 (D.C.Cir.1980); Poplar Grove Planting and Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir.1979). The movants argue that this case is a similar rare instance, and ask the court to exercise its discretion under Fed.R.Civ.P. 62(d) to construct a derivative of the second circumstance.. In their motion for a stay, the Christie Institute does not indicate its other creditors, but does reveal its precarious financial position. Lanny A. Simpkin, Assistant General Counsel of the Christie Institute, has stated in an affidavit that the Institute “does not have sufficient cash or other liquid assets at this , time to post a supersedeas bond in the amount of the sanctions.” Plaintiffs Exhibit A at p. 2. The affidavit further states that the Institute has $60,000.00 as a cash balance, and land holdings totalling $328,112.00. Id. The rest of the Institute’s assets appear to be computer equipment and anticipated donations from their fund raising efforts. Id. at 2-3. Accordingly, the movants maintain that their posting of a bond will render the Christie Institute insolvent and force the Institute to discontinue its operations. They, therefore, contend that this court should not force a bankruptcy allowing the" } ]

[ { "docid": "22352523", "title": "", "text": "claim to the land was initiated more than fourteen years after the date of the patent. As the fifth question has. been presented in separate briefs and the occasion for considering the other questions turns upon the answer to it, we take it up first. It is: “Is petroleum or mineral oil within the meaning of the term ‘mineral’ as it was used in said acts of Congress reserving mineral land from the railroad land grants?” This granting act, like several others of that period, expressly excluded from its operation “all mineral lands” other than iron and coal lands. No attempt was made at defining “mineral lands,” and doubtless the ordinary or popular signification of that term was intended. Apparently it was used in a sense which, if not restricted, would embrace iron, and coal lands, else care hardly would have been taken to declare that it should not include them. This was deemed a reasonable inference in Northern Pacific Railway Co. v. Soderberg, 188 U. S. 526, where a contention that it embraced only metalliferous lands was rejected. The question there was, whether it included lands containing valuable bodies of granite, and the holding was that it did. While avoiding an exact definition, the' court was of opinion that it comprehended all lands “chiefly valuable for .their deposits of a mineral character, which are useful in the arts or valuable for purposes of manufacture.” Petroleum has long been popularly regarded as a mineral oil. As its derivation indicates, the word means “rock oil,” an oily substance so named because found naturally oozing from crevices in rocks. Its existence in this country was known from very early times, and when this and other railroad land grants, containing an exception of mineral lands, were made, the extraction of oil from its natural reservoir in subterranean rocks had come to be a promising industry and was extending over an increasing area through discoveries of new oil fields. An official report laid before Congress a few months before this grant was made showed that the daily output of the oil wells in Pennsylvania," } ]

[ { "docid": "9443675", "title": "", "text": "of the plaintiffs own experts said in a report that pre-dates this action: Coal has classically been regarded as a solid fuel_ [I]n terms of its conventional usage, coal is considered to be a (solid) rock which could be burned and utilized as an energy resource. Based upon-this definition, utilization of the energy potential of a coal bed would necessarily entail the mining of the coal and removal to the surface, during which process most of the entrapped methane would be released. The residual “solid” is what would be conventionally regarded as “coal”, to the exclusion of any escaped gases that were originally present underground. Applt. App. at .1602, 1604 (Report of Jeffrey R. Levine, Ph.D.) (emphasis added) (parentheses in original). This classical understanding of coal dated back at least to 1909. , Without explanation, the majority contends that the fact that CBM was useless in 1909 makes the statute ambiguous as to CBM. See Maj. Op. at 1261 (“[Wjhere the commercial value of CBM was unappreciated at the time of the enactment, the text of these acts gives us no particular indication of Congress’ specific intent with regard to that asset.”). I draw- quite the opposite conclusion. CBM was a waste product in 1909. Its ownership not being desirable, one would not expect the United States to reserve it. Because a reservation of CBM would go against expectations, that would make it more, rather than less,-imperative for the government to mention the gas in its reservation of coal. Thus, the fact that CBM had no value confirms the plain meaning, rather than creating an ambiguity. The text of the majority opinion just quoted from not only fails to convince me that CBM’s lack of value creates an ambiguity, it also points back to the majority’s central interpretive error. The passage suggests that.because the statute does not refer to CBM, it is ambiguous with regard to CBM. Earlier in its opinion, the majority states explicitly that the 1909 and 1910 Acts do not “mention CBM; thus, the statutes do not by their plain language indicate congressional intent regarding CBM.” Maj." }, { "docid": "9443670", "title": "", "text": "of the late-nineteenth and early twentieth century uniformly described coal as a solid material. See Southern Ute Indian Tribe v. Amoco Prod. Co., 874 F.Supp. 1142, 1153 (D.Colo.1995) (citing AMERICAN Dictionary of the English Language 244 (1889) (defining coal as a. “black, or brownish black solid, combustible substance consisting ... mainly of carbon”); Webster’s New International Dictionary of the English Language 424 (1920) (defining coal as “a black, or brownish black, solid, combustible mineral substance”); A. Fay, A Glossary of the Mining and Minerál Industry 163 (1920) (describing coal as “a solid substance varying in color from dark-brown to black, brittle, combustible, and used a fuel”) (emphasis added)); see also E.A.N. ArbeR, The Natural History of Coal 4 (1912) (“[C]oal is not a mineral but a rock. Coal is as much a rock as sandstones, lime-stones, granites or marbles.”) (emphasis in original). These descriptions of coal as a “solid” are the first indication that the collective understanding of coal in 1909 did not include CBM, a gas. More importantly, the people of 1909 knew of the existence of CBM. CBM is a combustible gas released in the coal mining process. In the early twentieth century, coal miners ventilated mines before entering them to reduce the chance of explosions, used canaries to detect methane levels, and at times even purposefully lit collected gas to remove it from the mines. Despite these efforts, the ignition of CBM in coal mines led to the death of hundreds of coal miners each year. See Rollin T. Chaimberlain, Notes on Explosive Mine Gases and Dusts, U.S. Geol. Surv. Bull. 383, H.R. Doc. No. 1583, 60th Cong., 2d Sess., at 6 (1909). Because CBM was such an important — and dangerous — aspect of coal mining, it was very much a part of the general knowledge in 1909. It is clear not only that people of the time were aware that CBM existed^ but also that they thought of CBM as a gas: one of the common names used for it was “marsh gas.” If there had been no knowledge of CBM in 1909, the contemporary" }, { "docid": "9443663", "title": "", "text": "1910. . The opinion in Hoge is ample response to the dissent’s assertion that it is illogical to distinguish in ownership between CBM adsorbed in coal and CBM that has migrated. See dissent at 9 (the only difference between \"trapped\" CBM and \"escaped\" CBM is “dumb luck”). .The dissent finds it anomalous that we rely on Congressional recognition of advancing technology in coal mining to support our conclusion. We, in turn, find anomalous the dissent's position that when Congress reserved in 1909 and 1910 \"all coal and the right to ... mine, and remove the same” it unambiguously intended to give away to a homesteader on lands valuable for coal a hazardous product required at the time to be vented off and wasted in order to safely mine the coal. . Moreover, we cannot believe that Congress would have countenanced ceding CBM to surface patentees, see infrá note 12, knowing that degasification at the time would have involved damage to and possibly destruction of the very resource sought to be reserved-. See supra note 10. . \"Surface patent” is used throughout this opinion to indicate the surface estate patented to agricultural entrants under the 1909 and 1910 Acts, which estate included all minerals other than coal. . In 1955, to aid exploration and extraction of uranium and other source materials in coal reserved to the United States by the 1909 and 1910 Acts, Congress enacted legislation to control “Entry and Location on Coal Lands on Discovery of’ Source Material.” 30 U.S.C. §§ 541-54H (hereinafter the 1955 Act). The Amoco defendants consider the legislative history of the 1955 Act relevant to our determination of CBM ownership. We are not persuaded Amoco’s interpretation of the legislative history of the 1955 Act is the only interpretation the enactment will bear. In any event, Congress’ allocation of the right to extract uranium in coal cannot be equated to the CBM at issue in this case because uranium is not invariably included in coal as part of the' coalifi-cation process and because the 1955 Act does not purport to apply to nonfederal lands. Amoco also" }, { "docid": "9443627", "title": "", "text": "Hydrocarbons, such ' as petroleum, bitumen, paraffin, & e., are also found ‘occasionally in coal.... Gases, consisting principally of light carburetted hydrogen or marsh gas [CBM], are often present in considerable quantity in coal, in a dissolved or occluded state.... VI ENCYCLOPAEDIA BRITANNICA 575 (11th ed.1910). Because of its- “amorphous” nature and “variable composition,” coal “cannot be as strictly defined as a crystallized or definite mineral can.” Id.; accord m Americanized ENCYCLOPAEDIA BRITANNICA 1643 (1890) (same definition of coal). These definitions of coal were consistent with earlier ones, which characterized “coal” as “embracing] all classes of mineral fuel that will ignite and burn with flame or incandescent heat .... [of which] [t]he prominent varieties are denominated anthracite and bituminous COal.” IV THE AMERICAN CYCLOPAEDIA: A POPULAR DICTIONARY OF GENERAL KNOWLEDGE 726 (Ripley and Dana eds., 1873). In bituminous coal “hydrogen is the predominating element, in its [coal’s] gaseous or volatile constituents, though both oxygen and hydrogen are generally present in such coals in nearly equal parts.” Id. (corresponding to methane’s molecular identification as CH4). Additionally, The combinations of carbon, hydrogen, oxygen, and nitrogen with earthy impurities, to which the term mineral fuel [coal] may be properly applied, are infinite, ranging through all the grades of coal, from the hard, dense anthracite to the asphaltic varieties, and from the solidified petroleum to the gaseous naphtha. Id. The common understanding that coal was a heterogenous, complex substance counsels against acceptance of the limitations defendants and the dissent promote by their characterization of coal as simply “the solid rock.” Moreover, we are persuaded there was enough undisputed information about the unique nature of CBM itself to indicate that even if Congress intended to retain only solid rock coal, Congress, in 1909 may have considered CBM to be part of that solid coal. The broad contemporaneous definitions of coal quoted above showing that the reserved coal actually contained CBM in an occluded state support this conclusion. CBM is generated as part of the chemical and physical processes which convert carbon-rich sediments into solid coal (eoalification). J. Hovey Kemp & Kurt M. Petersen, Coal-Be.d Gas" }, { "docid": "9443622", "title": "", "text": "coal in said lands, and the right to prospect for, mine, and remove the same.” Law of Mar. 3, 1909, ch. 270, 35 Stat. 844 (current version at 30 U.S.C. § 81) (emphasis added) (hereinafter the 1909 Act). The 1910 Act similarly states that prospective homesteaders oh coal lands may obtain a patent which “shall contain a reservation to the United States of all the coal in the lands so patented, together with the right to prospect for, mine, and remove the same.” Law of June 22, 1910, ch. 318, § 3, 36 Stat. 584 (current version at 30 U.S.C. § 85) (hereinafter the 1910 Act). The Acts neither define coal nor mention CBM; thus, the statutes do not by their plain language indicate congressional intent regarding CBM. Even in the absence of a plain articulation, however, we have other means available to evaluate congressional intent'. See generally INS v. Cardoza-Fonseca, 480 U.S. 421, 431-48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Following this circuit’s traditional approach as developed in Northern Natural Gas Co. v. Grounds, 441 F.2d 704 (10th Cir.1971), and followed in Aulston, 915 F.2d at 589-599, we use traditional tools of statutory construction to investigate whether inclusion of CBM in the coal reservation was either specifically intended by Congress, or is consistent with Congress’ general legislative purpose in enacting the 1909 and 1910 Acts. B. Specific Congressional Intent Congress’ specific intent to include or exclude CBM in its reservation of coal must be judged from the perspective of Congress at the time of enactment of the 1909 and 1910 Acts. The-Amoco defendants and the dissent contend we can easily discern Congress’ specific intent from that perspective. First, citing many contemporaneous dictionary definitions of coal, they argue that in 1909 coal was typically defined as a solid rock, without specific mention of gaseous constituents. Second, they contend that in. 1909 Congress was aware of CBM as a hazardous gaseous byproduct of coal and could specifically have retained the CBM by inserting the word “gas” in the mineral reservation had it so wished. From these facts defendants and the" }, { "docid": "22051445", "title": "", "text": "expansively interpret the Pittman Act’s reservation. In Western Nuclear, we had no choice but to speculate about congressional intent with respect to the scope of the amorphous term “minerals.” Here, by contrast, Congress has textually narrowed the scope of the term by using the modifier “valuable.” The preeminent canon of statutory interpretation requires us to “presume that [the] legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992). Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous. Lamie v. United States Trustee, 540 U. S. 526, 534 (2004); Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 6 (2000); Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 438 (1999); Connecticut Nat. Bank, supra, at 254. We think the term “valuable” makes clear that Congress did not intend to include sand and gravel in the Pittman Act’s mineral reservation. “In interpreting statutory mineral reservations like the one at issue here, we have emphasized that Congress ‘was dealing with a practical subject in a practical way’ and that it intended the terms of the reservation to be understood in ‘their ordinary and popular sense.’ ” Amoco Production Co. v. Southern Ute Tribe, 526 U. S. 865, 873 (1999) (quoting Burke v. Southern Pacific R. Co., 234 U. S. 669, 679 (1914)). Importantly, the proper inquiry focuses on the ordinary meaning of the reservation at the time Congress enacted it. Amoco Production Co., supra, at 874; Leo Sheep Co. v. United States, 440 U. S. 668, 682 (1979) (land-grant statutes should be interpreted in light of “the condition of the country when the acts were passed” (internal quotation marks omitted)); see also Perrin v. United States, 444 U. S. 37, 42 (1979) (“[Ujnless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning” at the time Congress enacted the statute). Because the Pittman Act applied only to Nevada, the ultimate question is whether the sand and gravel" }, { "docid": "9443673", "title": "", "text": "(1905) (defining “coal” as “a stratified rock”); id. at 2637 (defining “marsh gas” as “a hydrocarbon -gas very abundant in nature”). These works demonstrate a commonly understood difference between marsh gas released as a- consequence of coal mining and the coal itself. The fact that Congress understood coal to be a solid, understood that marsh gas existed as a gas, and did not mention marsh gas in the statutes, persuades me that they did not mean to include CBM when they said “coal.” B. 1. Two further points support my plain-meaning interpretation of the term “coal.” The first involves the uses to which coal and CBM were put in 1909 and 1910. As the district court noted, coal — that is, the solid material — was the nation’s primary energy resource in the early twentieth century. See Southern Ute Indian Tribe, 874 F.Supp. at 1149. Coal was the driving force behind this country’s transition from an agrarian economy to an industrial economy. See id. Coal, the solid, heated our nation’s homes and played an indispensable role in the production of steel. The importance of the mineral to our nation cannot be overstated. Marsh gas, to the contrary, was considered a waste product. As I have said, miners knew of it because it was a danger to their lives, but the gas had no economic value at the tirqe. In the early 1900s, a “coal famine” struck the West. That shortage in supply led to government investigations and the discovery that many had fraudulently procured land that was rich in coal. This discovery, in turn, prompted President Roosevelt to withdraw vast amounts of land from the homesteading process and ultimately led to the passage of the Coal Lands Acts. In reserving coal to the federal government, Congress was attempting to manage and conserve the country’s most important resource — the solid rock coal — not the waste by-product coalbed methane. When examined against the baek-di’op of the early twentieth century, the majority’s interpretation that Congress may have thought “coal” also included CBM, an unused and unusable gas, seems extremely artificial. One" }, { "docid": "9443669", "title": "", "text": "understood in 1909 and 1910, not the present. The majority opinion concludes that “coal” has no plain meaning because the statutes “neither define coal nor mention CBM.” See Maj. Op. at 1258. It is well-established, however, that a term need not be defined in a statute in order to have a controlling plain meaning. Instead, when a statute does not define a word, we give that word its ordinary or natural meaning. See Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993); Sutton v. United Air Lines, Inc., 130 F.3d 893, 898 (10th Cir.1997). For several reasons, it is plain to me that the ordinary and common meaning of “coal” as Congress understood it in 1909 did not include coalbed methane. A. First, the term coal is not ordinarily understood to refer to a gas. “Common and ordinary usage may be obtained by reference to a dictionary.” United States v. Roberts, 88 F.3d 872, 877 (10th Cir.1996). As the district court pointed out, the dictionaries and general reference works of the late-nineteenth and early twentieth century uniformly described coal as a solid material. See Southern Ute Indian Tribe v. Amoco Prod. Co., 874 F.Supp. 1142, 1153 (D.Colo.1995) (citing AMERICAN Dictionary of the English Language 244 (1889) (defining coal as a. “black, or brownish black solid, combustible substance consisting ... mainly of carbon”); Webster’s New International Dictionary of the English Language 424 (1920) (defining coal as “a black, or brownish black, solid, combustible mineral substance”); A. Fay, A Glossary of the Mining and Minerál Industry 163 (1920) (describing coal as “a solid substance varying in color from dark-brown to black, brittle, combustible, and used a fuel”) (emphasis added)); see also E.A.N. ArbeR, The Natural History of Coal 4 (1912) (“[C]oal is not a mineral but a rock. Coal is as much a rock as sandstones, lime-stones, granites or marbles.”) (emphasis in original). These descriptions of coal as a “solid” are the first indication that the collective understanding of coal in 1909 did not include CBM, a gas. More importantly, the people of 1909 knew of" }, { "docid": "9443625", "title": "", "text": "the concurrent development of both surface and subsurface resources.” Western Nuclear, Inc., 462 U.S. at 47, 103 S.Ct. 2218 (construing Stock-Raising Homestead Act of 1916, which reserved to the government “all the coal and other minerals”). The public lands governed by the. 1909 and 1910 Acts were lands identified by the government as primarily valuable for coal, not as primarily valuable for other minerals or for homesteading. See generally id. at 47-52, 103 S.Ct. 2218. The text of each Act'makes clear that the coal was being reserved for subsequent mining and removal. Congress also plainly expected that these lands would be used by settlers for homesteading, with no apparent concern regarding future mining for other minerals. The title of the 1910 Act is particularly instructive in this regard: “An Act To provide for agricultural entries on coal lands.” See n. 4 supra. See also Western Nuclear, Inc., 462 U.S. at 53, 103 S.Ct. 2218. Second, while contemporaneous dictionary definitions of words in a statute are relevant, see Smith v. United States, 508 U.S. 223, 228-29, 113 S.Ct. 2050,124 L.Ed.2d 138 (1993), the existence of alternative dictionary definitions-may themselves indicate that the statute is ambiguous, see National R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992). Although as the dissent points out, “coal” was sometimes defined as a solid, combustible material, see dissent at 3, it was also defined much more broadly in many contemporaneous dictionaries and en-cyelopediae. For example, the new STANDARD DICTIONARY OF THE ENGLISH LANGUAGE 508 (1913 ed.) defined “coal” as: An amorphous substance derived from the vegetation of prehistoric ages, containing ' different hydrocarbons with sometimes free carbon and also complex substances carrying oxygen and nitrogen, found in beds or veins in the earth and used as fuel. Methane was considered a hydrocarbon in 1909 and squarely falls within the description of coal components set forth in the foregoing definition of coal. See$i the Century dictionary 3740 (1914) '(methane a hydrocarbon with chemical formula of CH4). It was widely recognized in 1909 that coal contains gaseous constituents:" }, { "docid": "9443623", "title": "", "text": "Grounds, 441 F.2d 704 (10th Cir.1971), and followed in Aulston, 915 F.2d at 589-599, we use traditional tools of statutory construction to investigate whether inclusion of CBM in the coal reservation was either specifically intended by Congress, or is consistent with Congress’ general legislative purpose in enacting the 1909 and 1910 Acts. B. Specific Congressional Intent Congress’ specific intent to include or exclude CBM in its reservation of coal must be judged from the perspective of Congress at the time of enactment of the 1909 and 1910 Acts. The-Amoco defendants and the dissent contend we can easily discern Congress’ specific intent from that perspective. First, citing many contemporaneous dictionary definitions of coal, they argue that in 1909 coal was typically defined as a solid rock, without specific mention of gaseous constituents. Second, they contend that in. 1909 Congress was aware of CBM as a hazardous gaseous byproduct of coal and could specifically have retained the CBM by inserting the word “gas” in the mineral reservation had it so wished. From these facts defendants and the dissent conclude that Congress’ use of the word “coal” in its mineral reservation was not inadvertent, and that Congress spe- eifically chose to reserve only solid rock coal. We disagree with Amoco and the dissent for a number of reasons. First, Amoco and the dissent focus solely on the word “coal” and totally ignore what is apparent from the face of the statutes: the coal was reserved from patents issued to land claimants under land grants of “non-mineral” lands to homesteaders; the lands had been “classified, claimed, or reported as being valuable for coal;” and the reservation of coal included “the right to prospect for, mine, and remove the same.” See 1909 Act. See also 1910 Act. Statutes must be read in their entirety, with each term considered in light of its context and the purposes of the act. See Gustafson v. Alloyd Co., 513 U.S. 561, 574-78, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). As explained more fully below, “Congress’ underlying purpose in severing the surface estate from the [coal] estate was to facilitate" }, { "docid": "9443671", "title": "", "text": "the existence of CBM. CBM is a combustible gas released in the coal mining process. In the early twentieth century, coal miners ventilated mines before entering them to reduce the chance of explosions, used canaries to detect methane levels, and at times even purposefully lit collected gas to remove it from the mines. Despite these efforts, the ignition of CBM in coal mines led to the death of hundreds of coal miners each year. See Rollin T. Chaimberlain, Notes on Explosive Mine Gases and Dusts, U.S. Geol. Surv. Bull. 383, H.R. Doc. No. 1583, 60th Cong., 2d Sess., at 6 (1909). Because CBM was such an important — and dangerous — aspect of coal mining, it was very much a part of the general knowledge in 1909. It is clear not only that people of the time were aware that CBM existed^ but also that they thought of CBM as a gas: one of the common names used for it was “marsh gas.” If there had been no knowledge of CBM in 1909, the contemporary definitions of coal as a “solid” would have been ambiguous as to CBM, and the majority would be correct that it is unclear whether the 1909 reservation of “coal” was meant to include only the solid coal rock, or whether it also included the CBM gas contained in and' around the coal. It is extremely unlikely, however, that a people as familiar with CBM gas as the people of 1909 would define coal as a “solid” if they also thought of CBM gas as coal. It is much more likely — indeed, it is quite plain — that the 1909 descriptions of coal as a solid, despite the intimate familiarity with CBM, is a further indication that the people did not believe that coal included CBM, a gas. It is axiomatic that gas and solids are two distinct properties, and that one is not thought to include the other. It is illuminating, however, that reference works of the times provided separate, non-overlapping definitions of coal and “marsh gas.” See, e.g., The Universal Encyclopaedio Dictionary 945" }, { "docid": "9443674", "title": "", "text": "role in the production of steel. The importance of the mineral to our nation cannot be overstated. Marsh gas, to the contrary, was considered a waste product. As I have said, miners knew of it because it was a danger to their lives, but the gas had no economic value at the tirqe. In the early 1900s, a “coal famine” struck the West. That shortage in supply led to government investigations and the discovery that many had fraudulently procured land that was rich in coal. This discovery, in turn, prompted President Roosevelt to withdraw vast amounts of land from the homesteading process and ultimately led to the passage of the Coal Lands Acts. In reserving coal to the federal government, Congress was attempting to manage and conserve the country’s most important resource — the solid rock coal — not the waste by-product coalbed methane. When examined against the baek-di’op of the early twentieth century, the majority’s interpretation that Congress may have thought “coal” also included CBM, an unused and unusable gas, seems extremely artificial. One of the plaintiffs own experts said in a report that pre-dates this action: Coal has classically been regarded as a solid fuel_ [I]n terms of its conventional usage, coal is considered to be a (solid) rock which could be burned and utilized as an energy resource. Based upon-this definition, utilization of the energy potential of a coal bed would necessarily entail the mining of the coal and removal to the surface, during which process most of the entrapped methane would be released. The residual “solid” is what would be conventionally regarded as “coal”, to the exclusion of any escaped gases that were originally present underground. Applt. App. at .1602, 1604 (Report of Jeffrey R. Levine, Ph.D.) (emphasis added) (parentheses in original). This classical understanding of coal dated back at least to 1909. , Without explanation, the majority contends that the fact that CBM was useless in 1909 makes the statute ambiguous as to CBM. See Maj. Op. at 1261 (“[Wjhere the commercial value of CBM was unappreciated at the time of the enactment, the text" }, { "docid": "9443630", "title": "", "text": "therefore, cannot be disposed of by the simple tautology that gas is gas and coal is coal. We are concerned not with the physical state of the substance as gas at the surface as it is now produced by modern technology, but rather with its physical state prior to extraction, as trapped in coal and economically inseverable in 1909. Even assuming that Congress specifically intended to retain only solid rock coal, CBM is so intimately associated with coal that Congress in 1909 could certainly have considered it part of the solid rock. Indeed, it seems to us quite unlikely that Congress, if it had considered the matter, would have reasoned, “We want the Government to hold on to the solid bituminous core of these coal deposits, but we make no claim to the thin layer of molecules of CBM which coats the surfaces.” In addition, we disagree that a specific intent to retain only solid i’ock coal was evinced by Congress’ awareness that CBM was, released as a hazardous byproduct of coal mining. CBM was not readily severable from coal in 1909 even though it is now “potentially severable” through application of advanced drilling and production technologies. See Kemp & Petersen, supra, at 261 (“Due to technical advances and changes in the world energy supply, the recovery and utilization of coal-bed gas now appears to. be more feasible.”). It is not reasonable to impute to Congress a desire to retain only solid rock coal constituents and to convey gaseous coal constituents when CBM is an integral component of coal and in 1909 there appears to have been no technology by which a patent holder could extract and capture CBM from coal without damaging or destroying the coal. Because no effective means existed in 1909 to remove adsorbed CBM leaving the coal behind, CBM physically trapped in eoál was necessarily retained with the Coal reservoir. The fact that CBM could not be commer-dally extracted from coal in 1909 indicates to us it is inappropriate to conclude that Congress unambiguously intended a specific result one way or the other regarding CBM by" }, { "docid": "9443624", "title": "", "text": "dissent conclude that Congress’ use of the word “coal” in its mineral reservation was not inadvertent, and that Congress spe- eifically chose to reserve only solid rock coal. We disagree with Amoco and the dissent for a number of reasons. First, Amoco and the dissent focus solely on the word “coal” and totally ignore what is apparent from the face of the statutes: the coal was reserved from patents issued to land claimants under land grants of “non-mineral” lands to homesteaders; the lands had been “classified, claimed, or reported as being valuable for coal;” and the reservation of coal included “the right to prospect for, mine, and remove the same.” See 1909 Act. See also 1910 Act. Statutes must be read in their entirety, with each term considered in light of its context and the purposes of the act. See Gustafson v. Alloyd Co., 513 U.S. 561, 574-78, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). As explained more fully below, “Congress’ underlying purpose in severing the surface estate from the [coal] estate was to facilitate the concurrent development of both surface and subsurface resources.” Western Nuclear, Inc., 462 U.S. at 47, 103 S.Ct. 2218 (construing Stock-Raising Homestead Act of 1916, which reserved to the government “all the coal and other minerals”). The public lands governed by the. 1909 and 1910 Acts were lands identified by the government as primarily valuable for coal, not as primarily valuable for other minerals or for homesteading. See generally id. at 47-52, 103 S.Ct. 2218. The text of each Act'makes clear that the coal was being reserved for subsequent mining and removal. Congress also plainly expected that these lands would be used by settlers for homesteading, with no apparent concern regarding future mining for other minerals. The title of the 1910 Act is particularly instructive in this regard: “An Act To provide for agricultural entries on coal lands.” See n. 4 supra. See also Western Nuclear, Inc., 462 U.S. at 53, 103 S.Ct. 2218. Second, while contemporaneous dictionary definitions of words in a statute are relevant, see Smith v. United States, 508 U.S. 223, 228-29," }, { "docid": "9443649", "title": "", "text": "these mineral reservations expansively. Western Nuclear, Inc., 462 U.S. at 60, 103 S.Ct. 2218 (“gravel is a mineral reserved to the United States in lands patented under” the 1916 Act); Aulston, 915 F.2d at 585 (reservation of “gas” in the 1914 Act includes carbon dioxide); Union Oil Co., 549 F.2d at 1279 (geothermal energy included in 1916 Act’s reservation of “all the coal and other minerals”); Brennan v. Udall, 379 F.2d 803, 804 (10th Cir.1967) (oil shale included in 1914 Act reservation of oil). Although the language employed in the 1914 and 1916 reservations is more expansive and admits more variety in type and cháracter of mineral reservation than the language used in the 1909 and 1910 Acts, judicial interpretations of these statutes have reached for the outer limits of reasonable construction in favor of the sovereign. A particularly notable example is one court’s classification of geothermal energy (hot water and steam) as a “mineral.” Union Oil Co., 549 F.2d at 1279. In fact, we have found no occasion in which a reservation of a mineral asset to the United States has been treated narrowly to exclude a newly appreciated value associated with that mineral; the cases cited above offer no support for doing so now. 4. Summary In summary, the direct legislative history of the coal lands acts indicates that Congress intended a reservation of coal that encompassed both the présent and future economic value of coal. Congress was aware that full economic realization of that benefit .would require advances in technology. Present day exploitation of CBM is a benefit of coal ownership that is consistent with Congress’ general statutory intent. Given the absence of value attributed to CBM in 1909 and 1910 and the danger it presented to coal miners, we cannot infer that Congress unambiguously intended to convey to the surface patent holder a component of coal which could not be severed at the time of the statutes’ enact ments except in the process of mining the coal itself. Ill For the foregoing reasons, we hold that “coal” as used in the Coal Land Acts of 1909" }, { "docid": "9443672", "title": "", "text": "definitions of coal as a “solid” would have been ambiguous as to CBM, and the majority would be correct that it is unclear whether the 1909 reservation of “coal” was meant to include only the solid coal rock, or whether it also included the CBM gas contained in and' around the coal. It is extremely unlikely, however, that a people as familiar with CBM gas as the people of 1909 would define coal as a “solid” if they also thought of CBM gas as coal. It is much more likely — indeed, it is quite plain — that the 1909 descriptions of coal as a solid, despite the intimate familiarity with CBM, is a further indication that the people did not believe that coal included CBM, a gas. It is axiomatic that gas and solids are two distinct properties, and that one is not thought to include the other. It is illuminating, however, that reference works of the times provided separate, non-overlapping definitions of coal and “marsh gas.” See, e.g., The Universal Encyclopaedio Dictionary 945 (1905) (defining “coal” as “a stratified rock”); id. at 2637 (defining “marsh gas” as “a hydrocarbon -gas very abundant in nature”). These works demonstrate a commonly understood difference between marsh gas released as a- consequence of coal mining and the coal itself. The fact that Congress understood coal to be a solid, understood that marsh gas existed as a gas, and did not mention marsh gas in the statutes, persuades me that they did not mean to include CBM when they said “coal.” B. 1. Two further points support my plain-meaning interpretation of the term “coal.” The first involves the uses to which coal and CBM were put in 1909 and 1910. As the district court noted, coal — that is, the solid material — was the nation’s primary energy resource in the early twentieth century. See Southern Ute Indian Tribe, 874 F.Supp. at 1149. Coal was the driving force behind this country’s transition from an agrarian economy to an industrial economy. See id. Coal, the solid, heated our nation’s homes and played an indispensable" }, { "docid": "9443631", "title": "", "text": "not readily severable from coal in 1909 even though it is now “potentially severable” through application of advanced drilling and production technologies. See Kemp & Petersen, supra, at 261 (“Due to technical advances and changes in the world energy supply, the recovery and utilization of coal-bed gas now appears to. be more feasible.”). It is not reasonable to impute to Congress a desire to retain only solid rock coal constituents and to convey gaseous coal constituents when CBM is an integral component of coal and in 1909 there appears to have been no technology by which a patent holder could extract and capture CBM from coal without damaging or destroying the coal. Because no effective means existed in 1909 to remove adsorbed CBM leaving the coal behind, CBM physically trapped in eoál was necessarily retained with the Coal reservoir. The fact that CBM could not be commer-dally extracted from coal in 1909 indicates to us it is inappropriate to conclude that Congress unambiguously intended a specific result one way or the other regarding CBM by its use of the word “coal.” Rather, we conclude that where the commercial value of CBM was unappreciated at the time of the enactment, the text of these acts gives us no particular indication of Congress’ specific intent with regard to that asset. See United States v. Union Oil Co. of California, 549 F.2d 1271- 1273 (9th Cir.1977) (“Congress was not aware of geothermal power when it enacted the Stock-Raising Homestead Act in 1916; it had no specific intention either to reserve geothermal resources or to pass title to them.”); Northern Natural Gas, 441 F.2d at 714-15 (no specific intent to exclude helium will be inferred where lessors neither knew,of presence nor appreciated value of helium gas); cf. Aulston, 915 F.2d at 594, 599 (rejecting argument that use of “gas” in mineral reservation evinced a specific congressional intent to exclude carbon dioxide from a gas reservation, when inclusion comported with general intent of statute and value of carbon dioxide was not appreciated at time of mineral reservation). The Amoco defendants and the dissent make much" }, { "docid": "22051446", "title": "", "text": "reservations like the one at issue here, we have emphasized that Congress ‘was dealing with a practical subject in a practical way’ and that it intended the terms of the reservation to be understood in ‘their ordinary and popular sense.’ ” Amoco Production Co. v. Southern Ute Tribe, 526 U. S. 865, 873 (1999) (quoting Burke v. Southern Pacific R. Co., 234 U. S. 669, 679 (1914)). Importantly, the proper inquiry focuses on the ordinary meaning of the reservation at the time Congress enacted it. Amoco Production Co., supra, at 874; Leo Sheep Co. v. United States, 440 U. S. 668, 682 (1979) (land-grant statutes should be interpreted in light of “the condition of the country when the acts were passed” (internal quotation marks omitted)); see also Perrin v. United States, 444 U. S. 37, 42 (1979) (“[Ujnless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning” at the time Congress enacted the statute). Because the Pittman Act applied only to Nevada, the ultimate question is whether the sand and gravel found in Nevada were commonly regarded as “valuable minerals” in 1919. Common sense tells us, and the Government does not contest, that the answer to that question is an emphatic “No.” Sand and gravel were, and are, abundant throughout Nevada; they have no intrinsic value; and they were commercially worthless in 1919 due to Nevada’s sparse population and lack of development. Thus, even if Nevada’s sand and gravel were regarded as minerals, no one would have mistaken them for valuable minerals. The Government argues only that sand and gravel were commercially marketable in other parts of the United States during World War I and that there is now a market for sand and gravel in some parts of Nevada. As we have explained, this evidence is simply irrelevant to the proper inquiry into the meaning of the statutory mineral reservation. Cf. Amoco Production Co., 526 U. S., at 873-880 (relying on the popular meaning of “coal” in 1909 and 1910 to hold that a reservation of “coal” does not include coalbed methane gas). Because we" }, { "docid": "9443694", "title": "", "text": "Congress intended to take advantage of those technological advances. See Maj. Op. 1265 (“Congress adopted an interpretation of coal which encompassed both the present and future economic value of coal for energy purposes, including value that could only be realized through advances in technology such as those which drive the present day exploration for CBM.”). The majority never explains how it can state that the lack of technology in 1909 shaped Congress’s view of CBM, and yet later rely on the fact that Congress anticipated technological advances to explain how Congress thought - about CBM. If Congress anticipated technological advances such as those that make CBM mining possible today, the lack of mining technology in 1909 should not have had any effect on its ability to conceive of CBM and coal as’ two separate entities. I agree that the 1909 Act envisioned technological advances affecting the coal mining industry. Thus, as the majority points out, Congress reserved to itself coal that was not economically useable in 1909 and 1910. Nonetheless, that does not change the fact that there is a limit on the natural and plain meaning of the term coal. The meaning of coal does not include CBM, regardless of technologies that make it available or unavailable. III. In 1909, people thought of gases and solids as separate entities. Their understanding was no different with regard to the relationship between coalbed methane — a dangerous gas emitted from coal mines — and coal itself. Coal, as used in the Coal Lands Acts of 1909 and 1910, has a plain meaning that does not include CBM. The majority attempts to create an ambiguity through analysis of the scientific process that keeps some of the CBM layered on the solid coal. For the reasons stated above, that analysis confirms the plain understanding rather than contradicting it. Because I find no ambiguity in the statute, I see no reason to invoke the rule that calls for interpreting ambiguities in a federal reservation in favor of the government. I respectfully dissent. ANDERSON and BALDOCK, Circuit Judges, join in this dissent. . The following" }, { "docid": "9443665", "title": "", "text": "relies on a 1933 House of Representatives' report to suggest that Congress has recognized dual ownership between the United States and agricultural patent holders when reserved minerals are found commingled with unreserved minerals. Amoco En Banc Br. at 47 (citing h.r. rep. no. 72-1938, at 2 (1933)). The House report and the subsequently enacted 1933 Act, which consolidated in the United States ownership of commingled sodium and potash, 30 U.S.C. § 124, do not particularly inform us about the 1909 and 1910 coal reservations, and certainly do not persuade us to ignore our mandate to resolve doubts and ambiguities in the 1909 and 1910 coal reservations in favor of the sovereign. . Our reversal will require the district court to address the defenses asserted by defendants to preclude recovery by the Tribe, at least some of which appear to raise issues of serious magnitude. . This document was originally produced in the district court and was subject to a Protective Order governing confidential documents in this case. Without objection, the appellants included this report in the public record on appeal. Therefore, we cite to it. All other documents produced in this case remain subject to the confidentiality provisions of the Protective Order. TACHA, Circuit Judge., dissenting. The majority finds that when Congress used the word “coal” in 1909 and 1910, it may have been referring not only to the solid rock we all understand coal to be, but also a gas by-product of coal, some of which seeps into nearby rock and some of which remains in the air pockets or cracks in the coal. Because coal was not understood, either in 1909 or today, to include a gas, I respectfully dissent. I. This appeal hinges on a single question of statutory interpretation: does the federal government’s reservation of coal in the Coal Lands Acts of 1909 and 1910 include coalbed methane (CBM), a gas that exists in and around coal deposits? When interpreting statutory terms, “[o]ur task is to give effect to the will of Congress.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 73" } ]

[ { "docid": "23162872", "title": "", "text": "part of the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1213, amending the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 197. It is not just a statute criminalizing possession of a firearm by convicted felons; it is part of a comprehensive scheme to regulate the movement of firearms. Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976) (“the Act clearly appl[ies] to and regulate[s] [] sales of a gun”). In Barrett the Supreme Court articulated the purpose behind § 922(g): The very structure of the Gun Control Act demonstrates that Congress did not intend merely to restrict interstate sales but sought broadly to keep firearms away from persons Congress classified as potentially irresponsible and dangerous [convicted felons]. These persons are comprehensively barred by the Act from acquiring firearms by any means. Thus, § 922(d) prohibits a licensee from knowingly selling or otherwise disposing of any firearm ... to the same categories of potentially irresponsible persons .... Similarly, § 922(g) prohibits the same categories of potentially irresponsible persons from shipping or transporting any firearm in interstate commerce or, see 18 U.S.C. § 2(b), causing it to be shipped interstate. 96 S.Ct. at 502. Thus § 922(g) has a regulatory role. Moreover, the penalty it imposes, including U.S.S.G. § 2K2.1(b)(2), advances this role. Altered firearms, for example sawed- off shotguns, “have few legitimate uses,” U.S.S.G. § 2K2.1, commentary, and have most probably been altered to conceal or magnify their deadly potential. Also the trade in guns is monitored for a reason. Registration and verification procedures are imposed largely to combat crime. It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible. Therefore, stolen or altered firearms in the hands of people recognized as irresponsible pose great dangers, and the guideline here reflects this heightened danger. An examination of 18 U.S.C. § 922(g), § 922(0, § 922© and" } ]

[ { "docid": "5542589", "title": "", "text": "at issue in Chappie. The possession of a sawed-off shotgun is a crime of violence because the alteration of a shotgun from its original manufactured length by reducing either the barrel or stock or both to the point where the overall length of the weapon to under a total length of 26 inches or if the length of the barrel alone is under 18 inches, renders the weapon illegal if not properly registered pursuant to federal law. Such an illegal alteration not only renders the weapon readily concealable, but also extremely increases its volatility because it changes the gun’s basic ballistic characteristics to make it more lethal. In other words the Court, based upon the congressional history of the firearms acts, evidence in many cases involving the carrying or use of illegal sawed-off shotguns in crimes of violence that have come before this Court, including evidence of the effect of firing a sawed-off shotgun, e.g., a wider pattern of effect, carry but one connotation: sawed-off shotgun wounds will almost always prove fatal and unless such firearms are manufactured and possessed in accordance with law are generally found in the possession of individuals who are either intending to commit or have committed crimes of violence or offenses related to controlled substances. For these reasons, I conclude that Chap-ple’s decision that simple possession of a firearm by a felon is not a crime of violence under Guideline 4B1.2 does not control our determination under § 3156(a)(4). 5. Cases on-point, applying § 3156(a)(4), hold that a violation of 18 U.S.C. § 922(g) constitutes a crime of violence. See, e.g., United States v. Jones, 651 F.Supp. 1309 (E.D.Mich.1987), reversed on other grounds, 846 F.2d 358 (6th Cir.1988); United States v. Phillips, 732 F.Supp. 255, 262-63 (D.Mass. 1990); United States v. Johnson, 704 F.Supp. 1398 (E.D.Mich.1988). The reasoning in Phillips is persuasive: Such possession by a felon is, by its nature, a crime of violence for several reasons. A felon is more likely to know that such possession is illegal and is more likely to be possessing a firearm with willful disregard for the legal" }, { "docid": "5542605", "title": "", "text": "include a burglary of any building or structure. See, Taylor v. United States, 495 U.S. 575, 590-99, 110 S.Ct. 2143, 2154-58, 109 L.Ed.2d 607 (1990) (interpreting 18 U.S.C. § 924(e)’s definition of violent felonies). 18 U.S.C. § 924(e)(2)(B)’s definition of a \"violent felony” is identical to the Guideline 4B1.2's definition of a \"crime of violence\" except for the addition of the words \"of a dwelling” after \"burglary.” Thus, even by language, § 3156(a)(4) is a broader standard than § 4B1.2, encompassing greater varieties of potentially dangerous conduct, and it is reasonable to assume that this is so because the Bail Reform Act recognizes the greater sensitivity and difficulty of the release/detention determination. . A crime of violence, or violent felony, is defined in four places in the relevant law, 18 U.S.C. §§ 16, 924(e), 3156(a)(4); Sentencing Guideline 4B 1.2, but follow two basic versions: the broader (§ 16 and § 3156(a)(4)) and the narrower (§ 924(e) and § 4B1.2). These Versions are distinguished not only by the differences in language as indicated in note 8, but by the purposes for which they are employed. As originally enacted, Guideline 4B1.2 incorporated § 16’s broader definition but was later amended to include its own definition borrowed from the narrower § 924(e), another \"sentence enhancement” provision. United States Sentencing Commission, Guidelines Manual, Appendix C, amendment no. 268, effective November 1, 1991 (1992); cf. United States v. Camargo, 908 F.2d 179, 178 n. 4 (7th Cir.1990) (incorrectly suggesting that the amendment merely added the language of § 16 to the Guideline). . See United States v. Beckley, No. 91-6177, 1992 WL 172127, *4, 1992 U.S.App. LEXIS 17473, *14 — 15 (ordered unpublished, reported as table case at 972 F.2d 349) (6th Cir. July 22, 1992), petition for cert. filed, No. 92-6838 (December 7, 1992) (\"A sawed off shotgun by its nature is an extremely dangerous weapon, and possession alone of such a loaded weapon in a crowded barroom could justify treatment as a crime of violence. Congress recognized the increased threat that a sawed off shotgun poses by imposing a greater punishment for these" }, { "docid": "5542607", "title": "", "text": "weapons under the firearm enhancement statute [18 U.S.C. § 924(c)(1)].”); United States v. Mobley, 956 F.2d 450, 453-54 (3rd Cir.1992) (\"Altered firearms, for example sawed-off shotguns, 'have few legitimate uses,’ U.S.S.G. § 2K2.1, commentary, and have most probably been altered to conceal or magnify their deadly potential.”). . See also Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976) (\"The very structure of the Gun Control Act [including § 922(g)] demonstrates that Congress did not intend merely- to restrict interstate sales but sought broadly to keep firearms away from per sons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred from acquiring firearms by any means.”). . The court in Dunn was interpreting 18 U.S.C.- § 16’s definition of a crime of violence which is identical to § 3156(a)(4)'s. Although it was doing so for sentence enhancement purposes under Guideline 4B1.1 (before the November 1, 1989 amendment to Guideline 4B1.2 incorporating 18 U.S.C. § 924(e)’s definition of crime of violence), I find its reasoning persuasive. . Although the Bail Reform Act creates a rebut-table presumption that no condition or 'combination of conditions of release will reasonably assure the appearance of the defendant or the safety of the community when there is probable cause to believe that the defendant used or carried a firearm during and in relation to a crime of violence, 18 U.S.C. §§ 3142(e), 924(c), the United States did not charge. a violation of § 924(c) or move for recognition of the presumption on the basis that a violation of § 922(g) is a crime of violence. Such an effect would probably raise the question of impermissible \"pyramiding” of offenses." }, { "docid": "10441586", "title": "", "text": "court at approximately 5:00 p.m., and then was called back to court at 5:20 p.m. having not reached a verdict yet. The district court sent the jury home under orders that they return at 9:00 a.m. the following morning. Upon the jury's return to court at 9:00 a.m., on September 9, 1994, the district court read them Instruction No. 15 and sent them back to resume their deliberations. The juty deliberated further and returned a verdict later that morning. . In discussing the language of § 922, the Supreme Court opined that Congress “sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. These persons are barred by the Act from acquiring firearms by any means.” Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976) (cited in United States v. Paolello, 951 F.2d 537, 541 (3d Cir.1991)). . In United States v. Stover, 822 F.2d 48, 49 & n. 1 (8th Cir.1987) {Stover), the defendant had been charged with violation of the former 18 U.S.C. § 1202(a)(1), which made it unlawful for \"[a]ny person who ... has been convicted by a court ... of a felony ... [to] possess ... in commerce or affecting commerce ... any firearm.” .Although we did not reach the issue of whether, or under what circumstances, a defense based upon innocent reasons might be available in a felon-in-possession case, our holding in Stover does not foreclose the possibility that such a defense could be used. But see United States v. Elder, 16 F.3d 733, 738 (7th Cir.1994) (Elder) (“[w]e have found no case that has allowed a defendant ... to claim as a defense that he, as a convicted felon, took possession of an illegal weapon for the innocent purpose of turning it over to the proper authorities”). . In Elder, 16 F.3d at 738, the defendant asked for a necessity defense instruction on grounds that the evidence showed it was necessary for him to take possession of the gun in order to turn it over to authorities. The Seventh Circuit affirmed" }, { "docid": "23091855", "title": "", "text": "(Nov. 1990), a court may classify a defendant as a career offender if his offense is a felony that is a crime of violence and he has two prior felony convictions for crimes of violence. We review de novo a district court’s interpretation of the sentencing guidelines. United States v. Nazifpour, 944 F.2d 472, 473 (9th Cir.1991). A. Unlawful Possession of a Firearm Silencer The district court used Huffhines’s Texas conviction for unlawful possession of a firearm silencer and a federal conviction for mailing an injurious article as the two prior felony convictions for crimes of violence. Huffhines contends his prior conviction for unlawful possession of a firearm silencer should not be counted as a prior crime of violence under section 4B1.1 because a silencer does not pose a threat as does a gun or other weapon. A categorical approach, by which only the statutory definition of the crime is examined, is appropriate to determine whether a prior conviction is a crime of violence under section 4B1.1. United States v. Alvarez, 960 F.2d 830, 837 (9th Cir.1992). The crime of possession of a firearm silencer does not have as an element the use, attempted use or threatened use of physical force required by section 4B1.2(l)(i). See Tex.Penal Code Ann. § 46.- 06(a)(4) (West 1989 & Supp.1992). Thus, in order for the offense to be a crime of violence, it must “involve[] conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(l)(ii). The unlawful possession of a silencer presents such a risk. In United States v. Dunn, 946 F.2d 615, 620-21 (9th Cir.), cert, denied, — U.S.-, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991), we held that possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d) constituted a crime of violence for purposes of section 4B1.1. We noted that, under 26 U.S.C. § 5861(d), not all firearms must be registered, only those that Congress found to be inherently dangerous and lacking in lawful purposes, such as sawed-off shotguns and grenades. We reasoned that the possession of an unregistered firearm of the kind defined" }, { "docid": "3726029", "title": "", "text": "under two subdivisions of section 922(g). Under 18 U.S.C. § 924(a)(2), Congress provided criminal penalties for the violation of subsection (g) of section 922, but it did not list separate penalties for the separate subdivisions of subsection (g). Furthermore, each subdivision of subsection (g) differs only in its requirement that the offender have a certain “status” under the law. The title of the statute, the Gun Control Act of 1968, leaves no doubt that the statutory purpose is to limit or control the possession of firearms. The statutory structure indicates that, in enacting section 922(g), Congress sought only to bar the possession of firearms by certain types of persons that it considered dangerous. It does not suggest that Congress also sought to punish persons, who are described in the various categories set forth in section 922(g), solely for having a certain status under the law. In addition, while section 922(g) prohibits the possession of firearms by persons described in its subdivisions, section 922(d) prohibits the sale of firearms to the same categories of persons. As the Supreme Court noted, “[t]he very structure of the Gun Control Act demonstrates that Congress ... sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous.” Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976). Hence, it would appear that, in enacting section 922(g), it was not within Congress’ comprehension or intention that a person could be sentenced, for a single incident, under more than one of the subdivisions of section 922(g). Nevertheless, the government contends that its interpretation of section 922(g) is supported by Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), in which the Supreme Court established a test to determine whether a defendant may be sentenced to consecutive terms of imprisonment “where the same act or transaction constitutes a violation of two distinct statutory provisions .... ” Under Blockburger, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of" }, { "docid": "15631542", "title": "", "text": "unregistered firearms. In adopting such a construction, the Court emphasized that the prohibited act in that case, possession of hand grenades, was hardly innocent in itself and that the statute constituted a legitimate effort to regulate highly dangerous offensive weapons in the interests of public safety. Id. at 608-10, 91 S.Ct. at 1117-1118. See United States v. Balint, 258 U.S. 250, 252-54, 42 S.Ct. 301, 302-303, 66 L.Ed. 604 (1922) (There are many instances of regulatory measures not requiring scienter for their violation “where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.”). In the case at hand, while the act at issue could conceivably be characterized as “innocent” inasmuch as gun purchases are both lawful and quite common, § 922(h), like § 5861(d), was clearly enacted in response to the need for regulation controlling the use of these objects which in and of themselves pose a danger to the general public. Indeed, the Supreme Court has commented that the purpose of § 922(h) is “broadly to keep firearms away from persons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred by the Act from acquiring firearms by any means.” Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976) (emphasis added). See also Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119, 103 S.Ct. 986, 994-95, 74 L.Ed.2d 845 (1983) (Congress determined in enacting § 922(h)(1) “that firearms must be kept away from persons, such as those convicted of serious crimes.”). Under these circumstances, we will not presume from congressional silence that Congress intended to make knowledge a prerequisite to violating the statutory provision. Accordingly, we hold that the district court acted properly in not granting Schmitt’s request to give the jury the charge submitted. B. Scienter and Counts 2 & 4- Schmitt additionally asserts that the district court erred in refusing to give to the jury a submitted instruction regarding Schmitt’s theory of defense to counts 2 and 4. These" }, { "docid": "5771037", "title": "", "text": "5861 actually cuts against his argument. Under Section 5861(d) “[o]nly those firearms must be registered that Congress has found to be inherently dangerous and generally lacking usefulness, except for violent and criminal purposes, such as sawed-off shotguns and hand-grenades.” Fortes, 141 F.3d at 6. Thus, “the primary reason that unregistered possession of these particular weapons is a crime is the virtual inevitability that such possession will result in violence.” United States v. Jennings, 195 F.3d 795, 799 (5th Cir.1999). See id. at 799, n. 4, quoting S. Rep. No. 90-1501, at 28 (1968) (Congress expanded the scope of the National Firearms Act to require registration of certain “destructive devices (such as bazookas, mortars, antitank guns, bombs, missiles, etc.,) machine guns, short-barreled shotguns, and short-barreled rifles [because they] are primarily weapons of war and have no appropriate sporting use or use for personal protection.”). The point is that most firearms do not have to be registered — only those that Congress found to be inherently dangerous. If the weapon is not so labeled, mere possession by a felon is not a crime of violence. See Fortes, 141 F.3d at 7. Accordingly, contrary to Brazeau’s position, the fact that sawed-off shotguns must be registered confirms our conclusion that such weapons are inherently dangerous, and the possession of such a weapon constitutes a crime of violence. III. Conclusion Under the Sentencing Guidelines, a crime is a “crime of violence” if it “involves conduct that presents a serious potential risk of physical injury to another.” Possession of a sawed-off shotgun is just such a crime because, by its very nature, a sawed-off shotgun always creates a serious risk of physical injury to another. Therefore, the district court properly set Bra-zeau’s base offense level at 20. We Affirm. . Fortes considered whether possession of a sawed-off shotgun constitutes a \"violent felony” within the meaning of 18 U.S.C. §§ 924(e)(1) and 924(e)(2)(B). However, because the definition of a violent felony — conduct that presents a serious potential risk of physical injury to another — mirrors the definition of a \"crime of violence” under the Guidelines, Fortes" }, { "docid": "5542606", "title": "", "text": "but by the purposes for which they are employed. As originally enacted, Guideline 4B1.2 incorporated § 16’s broader definition but was later amended to include its own definition borrowed from the narrower § 924(e), another \"sentence enhancement” provision. United States Sentencing Commission, Guidelines Manual, Appendix C, amendment no. 268, effective November 1, 1991 (1992); cf. United States v. Camargo, 908 F.2d 179, 178 n. 4 (7th Cir.1990) (incorrectly suggesting that the amendment merely added the language of § 16 to the Guideline). . See United States v. Beckley, No. 91-6177, 1992 WL 172127, *4, 1992 U.S.App. LEXIS 17473, *14 — 15 (ordered unpublished, reported as table case at 972 F.2d 349) (6th Cir. July 22, 1992), petition for cert. filed, No. 92-6838 (December 7, 1992) (\"A sawed off shotgun by its nature is an extremely dangerous weapon, and possession alone of such a loaded weapon in a crowded barroom could justify treatment as a crime of violence. Congress recognized the increased threat that a sawed off shotgun poses by imposing a greater punishment for these weapons under the firearm enhancement statute [18 U.S.C. § 924(c)(1)].”); United States v. Mobley, 956 F.2d 450, 453-54 (3rd Cir.1992) (\"Altered firearms, for example sawed-off shotguns, 'have few legitimate uses,’ U.S.S.G. § 2K2.1, commentary, and have most probably been altered to conceal or magnify their deadly potential.”). . See also Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976) (\"The very structure of the Gun Control Act [including § 922(g)] demonstrates that Congress did not intend merely- to restrict interstate sales but sought broadly to keep firearms away from per sons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred from acquiring firearms by any means.”). . The court in Dunn was interpreting 18 U.S.C.- § 16’s definition of a crime of violence which is identical to § 3156(a)(4)'s. Although it was doing so for sentence enhancement purposes under Guideline 4B1.1 (before the November 1, 1989 amendment to Guideline 4B1.2 incorporating 18 U.S.C. § 924(e)’s definition of crime of violence), I find its reasoning persuasive. ." }, { "docid": "1560487", "title": "", "text": "exceptions to liability under § 922(h). We noted the Supreme Court’s language that the statute “sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred by the Act from acquiring firearms by any means.” Barrett v. U. S., 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976). In Hammons we pre-termitted deciding whether a defense of emergency or exigent circumstances can be judicially read into the otherwise unambiguous terms of the statute, because in no event could the facts involved fall within such a defense, if allowed. In Hammons a friend of the defendant brought a pistol into a nightclub and escorted his girl friend outside at pistol point. The defendant, aware of the friend’s reputation for violence, followed the couple outside and persuaded the friend to hand over the gun. Defendant reentered the club with the gun still in his possession. When two police officers entered the club about ten minutes later, the defendant attempted to give the gun to a waitress with whom he had been talking, but during this exchange the gun went off and defendant was shot in the buttocks. We held: Defendant admits that he purposefully approached Bridges and took possession of the gun. Moreover, defendant retained possession of the firearm for approximately 10 minutes after reentering the bar, an act which is itself an apparent violation of federal gun control legislation. See 18 U.S.C.A. App. § 1202(a). Finally, not until police officers entered the club did defendant attempt to rid himself of the gun, and then he apparently tried to conceal the transfer from the officers. Defendant’s continued possession of the gun after the alleged emergency conditions had vanished and the surreptitious manner in which he attempted to transfer it were hardly consistent with his theory of justified or innocent receipt of the firearm. On the whole, the record in this case does not support defendant’s contention that the trial court erred in instructing the jury as it did. We express no opinion on whether a different set of facts" }, { "docid": "23116979", "title": "", "text": "212, 218, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976) (remarking, in the course of interpreting 18 U.S.C. § 922, that its “very structure ... demonstrates that Congress ... sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous”). Fewer than half the states have misdemeanor statutes that formally include relationship status as an element of a misdemeanor domestic assault offense. Others, like Massachusetts, rely on general misdemeanor statutes to accomplish the same ends. Thus, the appellant’s interpretation of section 922(g)(9) would render the statute a dead letter in most jurisdictions — an outcome that Congress hardly could have intended. This lack of congruence strengthens the pull of plain language; courts, after all, should not strain to reach results that inhibit the uniform and consistent application of a federal criminal statute. The appellant counters this statutory analysis with an array of asseverations, none of which we find persuasive. First, he maintains that had Congress intended not to require relationship status to be a formal element of a misdemeanor crime of domestic violence, it could have written the law differently (to say, for instance, that such a crime is an offense that “has, as an element” the use of force or a weapon, “and was committed by” someone within a relevant relationship). But Congress is not required to draft statutes in ways that are precise to the point of pedantry. As long as a statute, as written, is reasonably clear and does not lead to absurd outcomes, courts should construe it according to its tenor. See Salinas, 118 S.Ct. at 474; Negonsott, 507 U.S. at 104, 113 S.Ct. 1119; Charles George Trucking, 823 F.2d at 688. In all events, Meade’s counterfactual does nothing to bolster his problematic interpretation of the statute. Next, the appellant directs our attention to several statutes — including solicitation and sentence-enhancement laws — in which Congress has employed a more or less comparable linguistic structure that defines a “crime of violence” as an offense that “has as an element” the use or threatened use of force or of a deadly weapon against" }, { "docid": "23116978", "title": "", "text": "and promote a logically and linguistically coherent exegesis of the provision here at issue. They therefore reinforce the construction to which we are led by the plain meaning of the statutory text. See Brock v. Pierce County, 476 U.S. 253, 263, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986) (noting that statements in floor debates evidence legislative intent when they are consistent with statutory language and other legislative history). We note, too, that plain language can be made more (or less) compelling by a frank consideration of possible alternatives. Reading section 922(g)(9) in the manner that the appellant advocates would lead to a significant practical anomaly and would frustrate the clear purpose behind the law, which contemplated that the ban on firearms possession would apply broadly to all those falling into the relevant categories. See 18 U.S.C. § 922(g)(9) (making it “unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence” to possess “any firearm or ammunition”) (emphasis supplied); see also Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976) (remarking, in the course of interpreting 18 U.S.C. § 922, that its “very structure ... demonstrates that Congress ... sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous”). Fewer than half the states have misdemeanor statutes that formally include relationship status as an element of a misdemeanor domestic assault offense. Others, like Massachusetts, rely on general misdemeanor statutes to accomplish the same ends. Thus, the appellant’s interpretation of section 922(g)(9) would render the statute a dead letter in most jurisdictions — an outcome that Congress hardly could have intended. This lack of congruence strengthens the pull of plain language; courts, after all, should not strain to reach results that inhibit the uniform and consistent application of a federal criminal statute. The appellant counters this statutory analysis with an array of asseverations, none of which we find persuasive. First, he maintains that had Congress intended not to require relationship status to be a formal element of a misdemeanor crime of" }, { "docid": "20004772", "title": "", "text": "not provided by the Commission. See Mobley, 956 F.2d at 453. By a 2-1 decision, it rejected defendant’s argument that “a distinction in sentences based solely on the stolen status of the gun is arbitrary and capricious without evidence of scienter” and that it “serves none of the purposes of sentencing — retribution, general deterrence, specific deterrence, and rehabilitation — so that § 2K2.1(b)(2) is in discord with the purpose of the Guidelines.” Id. The majority reasoned that the enhancement is not in violation of the Commission enabling statute setting forth its purposes because the expansive nature of section 922 of title 18 is regulatory in nature and therefore evinces general congressional intent to harshly penalize possession of stolen guns: Section 922(g) is part of the Gun Control Act of 1968.... It is not just a statute criminalizing possession of a firearm by convicted felons; it is part of a comprehensive scheme to regulate the movement of firearms.... Thus § 922(g) has a regulatory role. Moreover, the penalty it imposes, including U.S.S.G. § 2K2.1(b)(2), advances this role. Altered firearms, for example sawed-off shotguns, “have few legitimate uses,” U.S.S.G. § 2K2.1, commentary, and have most probably been altered to conceal or magnify their deadly potential. Also the trade in guns is monitored for a reason. Registration and verification procedures are imposed largely to combat crime. It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible. Therefore, stolen or altered firearms in the hands of people recognized as irresponsible pose great dangers, and the guideline here reflects this heightened danger. An examination of 18 U.S.C. § 922(g), § 922©, § 922© and U.S.S.G. § 2K2.1(b)(2) shows how Congress and the Commission regulate the trade in stolen or altered firearms. Together § 922(i) and § 922(j) provide that any person who “transport^” or “receive[s] ... any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe” it stolen is culpable." }, { "docid": "5562250", "title": "", "text": "508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). . Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). . Grady v. Corbin. For a more extensive treatment of this and other closely related aspects of double jeopardy see our recent decision in United States v. DeShaw, 974 F.2d 667 (5th Cir.1992). . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). . Grady v. Corbin, 495 U.S. at 517, 110 S.Ct. at 2091 (internal quotations omitted). . As further evidence of congressional intention to apply the section in conjunction with other substantive offenses, we note that the section itself declares that the punishment imposed shall be \"in addition to the punishment imposed for such crime of violence ...” 18 U.S.C. § 924(c). . Cf. Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (purported multiple violations of the Mann Act). . Cf. United States v. Allison, 953 F.2d 870, 875 (5th Cir.1992) (felon in possession and use of firearm in commission of a felony). . E.g., United States v. Musgrove, 581 F.2d 406 (4th Cir.1978) (allowing multiple punishments in such circumstances). . E.g., United States v. Goodheim, 686 F.2d 776 (9th Cir.1982); United States v. Gomez, 603 F.2d 147 (10th Cir.), cert, denied, 444 U.S. 969, 100 S.Ct. 460, 62 L.Ed.2d 382 (1979) (allowing multiple punishments). . United States v. Munoz-Romo, 947 F.2d 170 (5th Cir.1991), vacated, — U.S.-, 113 S.Ct. 30, 121 L.Ed.2d 4 (1992). . United States v. Parker, 960 F.2d 498 (5th Cir.1992). . Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976) (principal purpose was to keep firearms away from \"persons Congress classified as potentially irresponsible and dangerous\"); United States v. Szalkiewicz, 944 F.2d 653 (9th Cir.1991); United States v. Causey, 609 F.2d 777 (5th Cir.1980); United States v. Smith, 591 F.2d 1105 (5th Cir.1979). See abo United States v. Rosenbarger, 536 F.2d 715 (6th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977); United States v. Kinsley, 518 F.2d 665" }, { "docid": "8178437", "title": "", "text": "community is a legitimate regulatory goal”); Masciandaro, 638 F.3d at 473 (“Although the government’s interest need not be ‘compelling’ under intermediate scrutiny, cases have sometimes described the government’s interest in public safety in that fashion”). Carter concedes this much. But he argues that § 922(g)(3), as applied to him, does not substantially further that interest without excessively intruding on Second Amendment rights. In other words, Carter challenges the link between marijuana usage and gun violence. Congress enacted the precursor to what is now 18 U.S.C. § 922(g)(3) as part of the Gun Control Act of 1968, Pub.L. No. 90-618, 82 Stat. 1213, seeking “broadly to keep firearms away from the persons [it] classified as potentially irresponsible and dangerous.” Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976); see also Huddleston v. United States, 415 U.S. 814, 824, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974) (“The principal purpose of the federal gun control legislation ... was to [curb] crime by keeping ‘firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency’ ”) (quoting S.Rep. No. 90-1501, at 22 (1968)). Congress effected this purpose, in part, by prohibiting several classes of persons from receiving firearms shipped in interstate commerce, including drug users. While the statute swept in users of several different categories of drugs, marijuana was the only drug specifically listed by name. See 82 Stat. 1213, 1220-21 (prohibiting receipt of firearms by any person who is “an unlawful user of or addicted to marihuana or any depressant or stimulant drug ... or narcotic drug”). This 1968 enactment, however, contained a number of loopholes. It only criminalized the receipt — not the possession — of firearms by such persons, and it did not include “hallucinogenic drugs that were controlled by the Controlled Substances Act, including the violence-inducing drug phencyclidine (PCP), various tranquilizers, designer drugs and other substances that have been added to the schedules of controlled substances.” H.R. Rep. 99-495, at 23, 1986 U.S.C.C.A.N. 1327, 1349. Congress closed these loopholes in 1986 with the enactment of" }, { "docid": "1366607", "title": "", "text": "that guideline.”). How a subsequent panel of this court will square the circle created by the majority’s interpretation of the ACCA against the Commission’s commentary to § 4B1.2 remains to be seen. Likewise, as the majority notes, six of our sister circuits have concluded that possession of a sawed-off shotgun constitutes either a violent felony under the ACCA or a crime of violence under the Guidelines. As the Ninth Circuit explained in United States v. Hayes, 7 F.3d 144, 145 (9th Cir.1993), “sawed-off shotguns are inherently dangerous, lack usefulness except for violent and criminal purposes and their possession involves the substantial risk of improper physical force.” To my knowledge, none of the other circuits have held otherwise. The majority attempts to counter these considerations. First, following the First Circuit, the majority contends that “possession does not fit well with the more active crimes included in the statute.” Maj. Op. at 528. Yet, that court has since rejected this rationale in the context of the inherently dangerous weapons identified by Congress in § 26 U.S.C. § 5845(a). In United States v. Fortes, 133 F.3d 157, 162 (1st Cir.1998), the First Circuit recognized a “reasonable — indeed very substantial— difference between possession of a generic ‘firearm’ and possession of one of the specialized weapons singled-out for particularized treatment” by Congress. The court found that for the latter category of weapons, mere possession “involved a blatant disregard for the law and a substantial risk of improper physical force.” Id. at 163 (quoting United States v. Huffhines, 967 F.2d 314, 321 (9th Cir.1992)). I agree — when the weapon possessed is extremely dangerous with few, if any, defensive or sporting uses, I would find that mere possession of it creates a serious potential risk of injury. The majority also relies upon United States v. Maness, 23 F.3d 1006, 1008 (6th Cir.1994), for the proposition that we must consider the “least objectionable conduct” that would violate the statute. I do not read the holding in Maness nearly that broadly. Under the categorical approach required by Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct." }, { "docid": "20004773", "title": "", "text": "this role. Altered firearms, for example sawed-off shotguns, “have few legitimate uses,” U.S.S.G. § 2K2.1, commentary, and have most probably been altered to conceal or magnify their deadly potential. Also the trade in guns is monitored for a reason. Registration and verification procedures are imposed largely to combat crime. It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible. Therefore, stolen or altered firearms in the hands of people recognized as irresponsible pose great dangers, and the guideline here reflects this heightened danger. An examination of 18 U.S.C. § 922(g), § 922©, § 922© and U.S.S.G. § 2K2.1(b)(2) shows how Congress and the Commission regulate the trade in stolen or altered firearms. Together § 922(i) and § 922(j) provide that any person who “transport^” or “receive[s] ... any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe” it stolen is culpable. In these sections Congress recognized the inherent evil in stolen guns and sought to regulate them. Section 922(g) targets a specific class of individuals— convicted felons. It provides that they shall not possess any firearm, regardless of the status of the firearm. So, for instance, if a convicted felon went into a sporting store, bought a shotgun to hunt, and signed all the necessary registration and verification forms, he would still be culpable. And if he obtained such a weapon from a drug dealer in some back street, it is reasonable that he would be more culpable. Thus § 2K2.1(b)(2) advances the overall regulatory scheme. Without empirical evidence, it is safe to say that stolen or pirated guns move in the back alleys and among clandestine meetings of the criminal world. Indeed Mobley admitted that he got his gun from a drug dealer named “Keith” in Columbia, South Carolina. A handgun is the consummate anti-personnel weapon. It is designed to be used against people. It defies reason to believe that there was anything benign in" }, { "docid": "23162873", "title": "", "text": "same categories of potentially irresponsible persons from shipping or transporting any firearm in interstate commerce or, see 18 U.S.C. § 2(b), causing it to be shipped interstate. 96 S.Ct. at 502. Thus § 922(g) has a regulatory role. Moreover, the penalty it imposes, including U.S.S.G. § 2K2.1(b)(2), advances this role. Altered firearms, for example sawed- off shotguns, “have few legitimate uses,” U.S.S.G. § 2K2.1, commentary, and have most probably been altered to conceal or magnify their deadly potential. Also the trade in guns is monitored for a reason. Registration and verification procedures are imposed largely to combat crime. It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible. Therefore, stolen or altered firearms in the hands of people recognized as irresponsible pose great dangers, and the guideline here reflects this heightened danger. An examination of 18 U.S.C. § 922(g), § 922(0, § 922© and U.S.S.G. § 2K2.1(b)(2) shows how Congress and the Commission regulate the trade in stolen or altered firearms. Together § 922© and § 922© provide that any person who “transports]” or “receivefs] ... any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe” it stolen is culpable. In these sections Congress recognized the inherent evil in stolen guns and sought to regulate them. Section 922(g) targets a specific class of individuals — convicted felons. It provides that they shall not possess any firearm, regardless of the status of the firearm. So, for instance, if a convicted felon went into a sporting store, bought a shotgun to hunt, and signed all the necessary registration and verification forms, he would still be culpable. And if he obtained such a weapon from a drug dealer in some back street, it is reasonable that he would be more culpable. Congress promulgated 18 U.S.C. § 922(g) on the premise that convicted felons have a greater propensity to commit crimes using firearms. It therefore categorically sought to remove firearms" }, { "docid": "5542588", "title": "", "text": "the information available to a court relevant to the factors to be considered on detention, 18 U.S.C. § 3142(g), is- usually unavoidably uncertain and incomplete. The decision facing a court is not whether'to merely enhance á sentence a defendant will already serve, but whether to release him from, custody into the community. In short, while the safety of the com--munity and prospective witnesses or jurors are more at risk in a pretrial release determination, the body of information informing that determination is less reliable. Given the purpose of the Bail Reform Act to identify potentially dangerous defendants who should be detained pending trial for the safety of the community, witnesses, and jurors, and given the unavoidable constraints under which courts must make that determination, I conclude that § 3156(a)(4)’s definition of a crime of violence has a broader scope than Guideline 4B1.2’s definition. For this reason, Chappie and similar cases interpreting § 4B1.2 are not persuasive in this case. c. • Finally, a sawed-off shotgun presents a greater safety concern than the handgun which was at issue in Chappie. The possession of a sawed-off shotgun is a crime of violence because the alteration of a shotgun from its original manufactured length by reducing either the barrel or stock or both to the point where the overall length of the weapon to under a total length of 26 inches or if the length of the barrel alone is under 18 inches, renders the weapon illegal if not properly registered pursuant to federal law. Such an illegal alteration not only renders the weapon readily concealable, but also extremely increases its volatility because it changes the gun’s basic ballistic characteristics to make it more lethal. In other words the Court, based upon the congressional history of the firearms acts, evidence in many cases involving the carrying or use of illegal sawed-off shotguns in crimes of violence that have come before this Court, including evidence of the effect of firing a sawed-off shotgun, e.g., a wider pattern of effect, carry but one connotation: sawed-off shotgun wounds will almost always prove fatal and unless such" }, { "docid": "5542592", "title": "", "text": "United States v. Bass, 404 U.S. 336, 354-55, 92 S.Ct. 515, 526, 30 L.Ed.2d 488 (1971) (Blackmun, J., dissenting) (quoting from 114 Cong.Rec. 14,773-14,774 (1968).... Phillips, 732 F.Supp. at 263. Furthermore, as discussed above, the risks involved in a pretrial release/detention decision warrant application of a broader standard than in the sentencing context. 6. Possession of an unregistered fireatm in violation of 26 U.S.C. § 5861(d) also constitutes an independent crime of violence as defined in 18 U.S.C. § 3156(a)(4). United States v. Dunn, 946 F.2d 615, 621 (9th Cir. 1991), cert. denied — U.S. -, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991). Dunn relied on the same concerns expressed above about the nature of such weapons: Not all firearms must be registered under 26 U.S.C. § 5861(d). Only those firearms must be registered that Congress has found to be inherently dangerous and generally lacking usefulness, except for violent and criminal purposes, such as sawed-off shotguns and hand grenades. 26 U.S.C. § 5845. The district court in United States v. Johnson, 704 F.Supp. 1398, reasoned that a felon in possession of a firearm, by its nature, involves a substantial risk of improper physical force under § 16(b) partly because of the blatant disregard for law displayed by an already-convicted criminal. 704 F.Supp. at 1401 (citing United States v. Jones, 651 F.Supp. 1309 (E.D.Mieh.1987), rev’d on other grounds, 846 F.2d 358 (6th Cir.1988)). The court’s reasoning also applies to the crime of possession of an unregistered firearm. The possession of an unregistered' firearm of the kind defined in § 5845, even if by a non-felon, involves a similarly blatant disregard for law and a substantial risk of improper physical force. An individual who keeps a firearm of that kind for lawful purposes will recognize the need'to register the weapon as evidence of lawful intent. Dunn, 946 F.2d at 621. See also United States v. Kruszewski, Magistrate No. 91-0031P, 1991 WL 268684, *1-2, 1991 U.S.Dist. LEXIS 17986, *2-3 (N.D.Ind., December 10, 1991) (Bail Reform Act) (the offenses of making unregistered firearms in violation of 26 U.S.C. §§ 5822, 5861(f) and 5871 “are" } ]

[ { "docid": "23287280", "title": "", "text": "courts. Section 1404(a) of the Judicial Code has replaced the doctrine whenever the more convenient tribunal is another federal court where the action ‘might have been brought.’ Where, however, there is no alternative federal forum, dismissal on the grounds of forum non conveniens is still permissible. In admiralty cases in particular it frequently happens that the more convenient forum is in a foreign country, and dismissal will then be ordered.” 1 Barron & Holtzoff, Federal Practice and Procedure § 87, pp. 442-443 (Wright ed. 1960). Forum non conveniens, as an equitable proposition, is still available to the federal courts, despite its clear limitation, where the state court or the court of a foreign country is the alternative forum. See Venue in the Federal Courts —The Problem of the Inconvenient Forum, 15 U.Miami L.Rev. 237, 239 (1961); Glicken v. Bradford, 204 F.Supp. 300, 304 (S.D.N.Y.1962). In the instant case the District Court thus applied the doctrine under the theory that the courts of Cuba were open as an alternative. This we must reject, not upon grounds of abuse of discretion by the court in the employment of a traditionally equitable doctrine, but because we see it as an erroneous application of law to the established facts. There is a clear distinction between the review of transfer orders under 28 U.S.C. § 1404(a), which are interlocutory, and, therefore, reviewable rarely, if at all, and orders of dismissal which being final, are appealable as of right. The facts here are that Pan American removed, as a matter of right under the diversity statute, cause of action from the initial forum chosen by plaintiffs. The plaintiffs have vigorously sought hearing in the jurisdiction invoked by defendants themselves. The burden to establish good cause for dismissal is quite plainly upon the defendant, and it is still true that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). In this same case the Supreme Court said on pages 506, 507," } ]

[ { "docid": "23527909", "title": "", "text": "dismiss cases for forum non conveniens. Thus, it cannot be said with certainty that in ruling on a section 1404(a) motion a court must exercise a strong presumption in favor of plaintiff’s choice of forum. By the same token, however, it is certainly a factor to be considered, and both the Fifth Circuit and numerous district courts in this circuit have held that, subject to certain exceptions not relevant here, it is entitled to great deference. See, e.g., Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.), cert. denied sub nom. Dow Chem. Co. v. Greenhill, 493 U.S. 935, 110 S.Ct. 328, 107 L.Ed.2d 318 (1989); Menendez Rodriguez v. Pan American Life Ins. Co., 311 F.2d 429, 434 (5th Cir.1962) (cited with approval in Peteet, supra, and Time, Inc. v. Manning, supra), vacated on other grounds, 376 U.S. 779, 84 S.Ct. 1130, 12 L.Ed.2d 82 (1964); Enserch Int’l Exploration, Inc. v. Attock Oil Co., Ltd., 656 F.Supp. 1162, 1167 n. 15 (N.D.Tex.1987); United Sonics, Inc. v. Shock, 661 F.Supp. 681, 683 (W.D.Tex.1986); McRae v. Sawyer, 660 F.Supp. 62, 65 (S.D.Miss.1986); Young v. Armstrong World Indus., Inc., 601 F.Supp. 399, 401 (N.D.Tex.1984). Moreover, in the instant case, additional factors suggest that greater deference should be shown towards Plaintiffs’ choice of forum. First, Plaintiff Continental Airlines, Inc. (“Continental”) resides in the Southern District. See Rippy v. Crescent Feed Commodities, Inc., 710 F.Supp. 1074, 1079 (S.D.Miss.1988) (plaintiffs choice of forum is entitled to great weight, especially when that choice is in his home state); Mead Data Cent., Inc. v. West Publishing Co., 679 F.Supp. 1455, 1465 (S.D.Ohio 1987) (relative importance of plaintiffs choice of forum increased because plaintiff corporation filed suit in state that was its principal place of business). Additionally, at least one court has held that the plaintiffs choice of forum is entitled to particular deference in antitrust cases. See, e.g., Expoconsul Int’l, Inc. v. A/E Sys., Inc., 711 F.Supp. 730, 735 (S.D.N.Y.1989). After carefully considering Defendants’ motion and Plaintiffs’ Combined Response, the Court is of the opinion that Defendants have not demonstrated that a change of venue is" }, { "docid": "23287284", "title": "", "text": "the treatment of those who flee their native land and return to Castro’s jurisdiction to contest their property rights with a Louisiana corporation. A recent case from the Court of Appeals for the District of Columbia is close in point. North Branch Products, Inc. v. Fisher, 109 U.S.App.D.C. 182, 284 F.2d 611 (1960), cert. den. 365 U.S. 827, 81 S.Ct. 713, 5 L.Ed.2d 705. There the district court had dismissed an action on the ground that either a Michigan state court or a court in Canada would be a more convenient forum. This was reversed, the appellate court finding that the jurisdiction of a defendant would not be obtained in Michigan and said there was no certainty that a Canadian court would assume jurisdiction of the action. The court cited Gulf Oil Corp. v. Gilbert, supra, as authority for the proposition that there must be a clear showing that an alternative forum exists. It was held erroneous to dismiss in the absence of such clear showing. There is no such showing on the record before us. The District Court’s ruling dismissal on grounds that Cuba would be a more convenient forum was error because the standards discussed here were improperly applied to the established facts. Appellant contends, however, that since it is a Louisiana corporation, the plaintiffs also have available as an alternative forum the courts of that state, and, therefore, the doctrine of forum non conveniens was .properly invoked by the District Court though the order spoke in terms of more convenience in Cuba. This, it says, is basis enough, under established appellate rules, to sustain the dismissal. Assuming this to be so, arguendo, we still do not find .anything suggested by this record that the case .would be more conveniently tried in the Louisiana courts or anywhere other than the Tampa Division of the United States District Court for the Southern District of Florida. The same burden of clear showing in this record is borne by the defendant, and this it has not carried. Indeed, we think it appropriate to note that should this defendant prevail on this" }, { "docid": "4976972", "title": "", "text": "presumption in favor of a citizen or resident plaintiffs choice of forum unless other private and public interest factors involved clearly point to trial in the alternate forum. Reyno, supra, 454 U.S. at 255, 102 S.Ct. at 265 (emphasis added). The complaint of an American citizen should not be dismissed on forum non conveniens grounds unless trial in a United States court would be unjust, oppressive, or vexatious and not merely inconvenient to the defendant. Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 831, 91 L.Ed. 1067 (1947); Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1344 (2d Cir.1972); Thompson v. Palmieri, 355 F.2d 64, 66 (2d Cir.1966); Ionescu v. E.F. Hutton & Co. (France) S.A., 465 F.Supp. 139, 145 (S.D.N.Y.1979) (Pollack, J.). Here, plaintiffs are United States corporations, all doing business in New York, all have their principal place of business in the Southern District of New York, and AHA, Frontier Insurance Company, and Public Service Mutual Insurance Company are organized under the laws of this state. Movants do not allege any “unjust, oppressive, or vexatious” grounds for their claim of forum non conveniens. All primary parties are corporate entities involved in international reinsurance practice and all but RTC and BIBL are present in New York. Trial in New York would therefore be at least as convenient to the primary parties as trial in the United Kingdom. See Top Form Mills v. Sociedad Nationale Ind., Etc., 428 F.Supp. 1237 (S.D.N.Y.1977) (Gagliardi, J.); Odita v. Elder Dempster Lines, Ltd., 286 F.Supp. 547 (S.D.N.Y.1968) (Herlands, J.). Other private interest factors named in Gilbert weigh in favor of retention of jurisdiction. All documentary evidence is now present in the United States and arrangements have been made to depose all foreign witnesses. Allegations by movants concerning greater access in Britain to documents, witnesses and evidence concerning London market practices, therefore, appear unfounded but, even if true, do not amount to the “extreme circumstances” and “material injustice” needed to overcome the strong private interest of plaintiffs’ choice of a domestic forum. Leasco Data Processing Equipment Corp. v." }, { "docid": "23287283", "title": "", "text": "this court reversed a district court which had dismissed in favor of a foreign court, saying: “Instead of the rule being, as the trial court here stated, that jurisdiction should be denied unless such denial would work an injustice, the rule is, rather, that jurisdiction should be taken unless to do so would work an injustice.” Motor Distributors, Ltd. v. Olaf Pedersen’s Rederi A/S, 239 F.2d 463, 465 (5th Cir. 1956). This year a district court observed that forum non conveniens “is a harsh rule and is applied in rather rare cases * * * Glicken v. Bradford, supra. Defendant, under this test, must show that these plaintiffs, refugees from Castro’s Cuba, can obtain justice in the courts of Cuba. The law does not impose upon these Cuban refugees, any more than any other plaintiff, the burden of proving that they would have problems of health or legal difficulties in obtaining justice in the courts of Cuba. By like token, we need not and do not embark upon an international sea of judicial notice of the treatment of those who flee their native land and return to Castro’s jurisdiction to contest their property rights with a Louisiana corporation. A recent case from the Court of Appeals for the District of Columbia is close in point. North Branch Products, Inc. v. Fisher, 109 U.S.App.D.C. 182, 284 F.2d 611 (1960), cert. den. 365 U.S. 827, 81 S.Ct. 713, 5 L.Ed.2d 705. There the district court had dismissed an action on the ground that either a Michigan state court or a court in Canada would be a more convenient forum. This was reversed, the appellate court finding that the jurisdiction of a defendant would not be obtained in Michigan and said there was no certainty that a Canadian court would assume jurisdiction of the action. The court cited Gulf Oil Corp. v. Gilbert, supra, as authority for the proposition that there must be a clear showing that an alternative forum exists. It was held erroneous to dismiss in the absence of such clear showing. There is no such showing on the record before" }, { "docid": "18886460", "title": "", "text": "jurisdiction of Iranian courts if sued there, but since defendants are not registered to do business in Iran, they are not subject to suit there if plaintiff’s interpretation of Iranian law is correct. Farmanfarmaian aff., ¶ 22; Omidvari aff. (July 5, 1976). But see affidavits of Messrs. Sabi and Nateghi, defendants’ experts, which contend that Iran would have had jurisdiction over defendants at the time the instant suit was commenced. Plaintiff’s recital of Iranian jurisdictional law— assuming its correctness at this point — raises a curiously difficult issue: whether the consent of American defendants to a foreign jurisdiction creates an alternate forum such that, if appropriate, the court may decline jurisdiction over the claims of a foreign plaintiff and leave that plaintiff to the remedies of the consented to forum. It is plaintiff’s contention that the proper answer to this question is “no.” Defendants, of course, hold a contrary view. The beginning point of investigation into this question is the Supreme Court’s decision in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1946). In Gulf Oil, which involved Americans as both plaintiff and defendant, the Court by Justice Jackson, said: “In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes the criteria for choice between them.” 330 U.S. at 506-07, 67 S.Ct. at 842. Since Gulf Oil, the condition of an available alternate forum to the dismissal of an action on the ground of inconvenience has been steadfastly adhered to by our courts. See, e. g., Tivoli Realty v. Interstate Circuit, 167 F.2d 155 (5th Cir.), cert. denied, 334 U.S. 837, 68 S.Ct. 1494,92 L.Ed. 1762 (1948); Esso Transport Co. v. Terminales Maracaibo, C.A., 352 F.Supp. 1030 (S.D.N.Y.1972); Domingo v. States Marine Lines, 340 F.Supp. 811 (S.D.N.Y.1972); Fiorenza v. United States Steel International, Ltd., 311 F.Supp. 117 (S.D.N.Y.1969); Restatement of the Law (Second), Conflict of Laws § 84(c)(2). This rule is clearly grounded on due process considerations. If dismissal of an action on" }, { "docid": "18413592", "title": "", "text": "England. Although Lerner and Davis mention that alternative forums are available in Connecticut and Maryland, re spectively, their arguments are all directed at showing the propriety of an English setting. The Supreme Court has not ruled on whether federal or state law governs the forum non conveniens inquiry in a federal court. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). This court concludes that the question is one of federal law. See Grodinsky v. Fairchild Industries, Inc., 507 F.Supp. 1245, 1249 n.2 (D.Md.1981); Fiorenza v. United States Steel International, Ltd., 311 F.Supp. 117 (S.D.N.Y.1969); Lapides v. Doner, 248 F.Supp. 883 (E.D.Mich.1965); 15 Wright, Miller and Cooper, Federal Practice and Procedure, § 3828 (1976 and 1980 Supp.). The defendants have the burden of proving that these cases should be dismissed on forum non conveniens grounds. Schertenleib v. Traum, supra. This burden is a heavy one, for “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508, 67 S.Ct. at 843. The doctrine leaves the district judge much discretion. Gulf Oil at 508, 67 S.Ct. at 843. A. Availability of an Alternative Forum: The forum non conveniens doctrine comes into play only if the defendants are able to show that an alternative forum is available to the plaintiffs, for the doctrine “presupposes at least two forums in which the defendant is amenable to process...” and “furnishes the criteria for choice between them.” Gulf Oil, supra at 507, 67 S.Ct. at 842. If there exists a forum in addition to this district which has jurisdiction and venue over these cases, the defendants must then demonstrate that the trial of the action would more appropriately take place in that forum. Dahl v. United Technologies Corp., 632 F.2d 1027 (3rd Cir. 1980). The defendants contend that the courts of England provide an alternative forum for these actions. Plaintiffs argue that those courts would not have jurisdiction over the defendants, that they may be barred from bringing" }, { "docid": "8284023", "title": "", "text": "non conveniens presupposes the existence of an alternative forum where plaintiff can adequately vindicate his rights and “the doctrine furnishes criteria for choice between [two forums]”. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). The Court cannot say with any degree of certainty that, as a practical matter, such an alternative forum exists in which to try the present case. Moreover, upon reconsideration of all relevant factors, the Court is convinced that the balance of convenience does not strongly favor defendants and, therefore, plaintiff’s choice of forum should not be disturbed. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 504-509, 67 S.Ct. 839; see also Baksay v. Rensellear Polytech Institute, 281 F.Supp. 1007, 1009 (S.D.N.Y.1968). While many of the allegedly important witnesses are British citizens, most of them are employed by defendants. Thus, these witnesses presumably are under defendants’ control and are able to testify in New York, if defendants so desire. See Toti v. Plymouth Bus Company, 281 F.Supp. 897, 898 (S.D.N.Y.1968). That a United States District Court may not possess the same degree of familiarity with British substantive law that a British court may have “is not a factor that weighs very heavily upon the forum non conveniens scale. The task of deciding foreign law is a chore that the federal courts are called upon to perform with regularity.” Ciprari v. Servicos Aereos Cruzeiro do Sul, S.A., 232 F.Supp. 433, 443 (S.D.N.Y.1964) (Brazilian law); Burt v. Isthmus Development Co., 218 F. 2d 353, 357 (5th Cir.), cert. denied, 349 U.S. 922, 75 S.Ct. 661, 99 L.Ed. 1254 (1955) (Mexican law); Horovitz v. Renault, Inc., 162 F.Supp. 344, 347 (S.D.N.Y.1958) (Spanish and French law). While retention of jursidiction of this suit may involve some inconvenience to defendants, dismissal would merely shift the inconvenience to plaintiff. Indeed, dismissal might very well deprive plaintiff of any forum in which to vindicate his legal rights. In short, the balance of convenience and interests of justice favor retention of this suit. Accordingly, the motion for reargument is granted and the original decision declining" }, { "docid": "16983354", "title": "", "text": "non conveniens analysis the superimposition of such extensive initial burdens in the home forum may be a factor that necessarily would weigh against retention of jurisdiction in the balancing of the Gilbert public and private interest factors. Accordingly, the Court concludes that it is appropriate to put aside these difficult jurisdictional issues and proceed to consider instead whether this district is the most convenient forum for the parties to litigate the instant case. III. DISCUSSION Courts employ a two-part test to analyze an invocation of the forum non conveniens doctrine. Initially, the court determines whether there exists an available and adequate alternative forum where the dispute could be adjudicated. See Gilbert, 330 U.S. at 506-07, 67 S.Ct. 839; Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). This inquiry consists of two parts: availability and adequacy. Ordinarily, the availability requirement is met if the defendant is amenable to process in the alternative forum. See Gilbert, 330 U.S. at 507, 67 S.Ct. 839 (noting that the doctrine “presupposes at least two forums in which the defendant is amenable to process”); see also Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252. The adequacy test addresses the sufficiency of the alternative forum as a source of remedies for the wrongs the plaintiff claims. See Piper Aircraft, 454 U.S. at 254, 102 S.Ct. 252 (noting that dismissal may not be in the interest of justice “if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all”). If the preceding standards are met, the court assesses the appropriateness of litigating the action in the plaintiffs choice of forum, as opposed to the alternative venue, by balancing the private interests of the litigants and the public interest concerns of the court in accordance with the factors articulated by the Supreme Court in Gilbert. See Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839; Monegasque, 311 F.3d at 500; VictoriaTea.com, Inc. v. Cott Beverages, 239 F.Supp.2d 377, 381 (S.D.N.Y.2003); Moscovits v. Magyar Cukor Rt., No. 00" }, { "docid": "18886484", "title": "", "text": "was met here; therefore the seamen could sue in Greece only with Nile's consent. In Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960), the Supreme Court held that a forum in which the plaintiffs could not sue as a matter of right, but in which they were dependent on the defendant’s consent to proceed, was not an available forum under the doctrine of forum non conveniens.” Footnote #5, in Grammenos, DCK. No. 71-1057 (2d Cir. Feb. 23, 1972). The Court of Appeals, however, subsequently amended its opinion, and substantially modified the above footnote. The footnote now reads as follows: “Forum non conveniens is not an appropriate ground for dismissal at this point. The doctrine, which ‘involves the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else ... is quite naturally subject to careful limitation for it not only denies the plaintiff the generally accorded privilege of bringing action where he chooses, but makes it possible for him to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate.’ All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952); 1 Moore, Federal Practice 0.145[5]. A decision to dismiss ‘presupposes at least two forums in which the defendant is amenable to process . . . [and] furnishes criteria for choice between them.’ Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). The factors to be taken into consideration include those relevant to the decision on refusal to exercise subject matter jurisdiction, particularly the issue of availability of another forum, as well as other practical questions such as access to sources of proof, and convenience and cost of obtaining or compelling attendance of witnesses. See Gkiafis v. Steamship Yiosonas, 387 F.2d 460 (4th Cir. 1967); Odita v. Elder Dempster Lines, Ltd., 286 F.Supp. 547 (S.D.N.Y.1968); Voyiatzis v. National Shipping and" }, { "docid": "13388186", "title": "", "text": "in Gilbert that the doctrine of forum non conveniens presupposes the existence of the alternate forum in which suit can be brought. 330 U.S. at 506-507, 67 S.Ct. at 842. When that alternate forum is not truly available for any reason, as in the instant case, the doctrine of forum non conveniens will not be applied to dismiss the action. Rodriguez v. Pan American Life Ins. Co., 311 F.2d 429 (5th Cir. 1962), vacated on other grounds, Menendez Rodriguez v. Pan American Life Ins. Co., 376 U.S. 779, 84 S.Ct. 1130, 12 L.Ed.2d 82 (1964); North Branch Products, Inc. v. Fisher, 109 U.S.App.D.C. 182, 284 F.2d 611 (D. C. Cir. 1960), cert. denied, 365 U.S. 827, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961); Constructora Ordaz, N.V. v. Orinoco Min. Co., 262 F.Supp. 90 (D.C.Del.1966); Glicken v. Bradford, 204 F.Supp. 300 (S.D.N.Y.1962). See especially the Opinion of the late Hon. William B. Her-lands in Odita v. Elder Dempster Lines, Ltd., 286 F.Supp. 547 (S.D.N.Y.1968), where the facts were strikingly similar to those in the instant case. In addition, we note that the fact that plaintiff is an alien does not preclude his bringing the instant action. See, e. g., The Belgenland, 114 U.S. 355, 5 S.Ct. 860, 29 L.Ed. 152 (1884); Rodriguez, supra. Nor does the record indicate any interest or attempt on the part of plaintiff to harass or oppress defendant. As indicated, supra, plaintiff first brought his action in Florida, and only initiated the instant action here after the Florida action was dismissed on defendant’s motion. Moreover, it can hardly be harassment on the part of plaintiff to bring his action here, where defendant has its principal place of business, rather than in the Bahamas, when it may well be that for the reasons considered above he would be unable to bring it there. In addition, the fact that foreign law may be applicable does not change our determination as to the weight of convenience in this case. This Court is well versed in the task of applying foreign law. We note, in addition, that plaintiff’s attorneys have indicated" }, { "docid": "18886461", "title": "", "text": "91 L.Ed. 1055 (1946). In Gulf Oil, which involved Americans as both plaintiff and defendant, the Court by Justice Jackson, said: “In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes the criteria for choice between them.” 330 U.S. at 506-07, 67 S.Ct. at 842. Since Gulf Oil, the condition of an available alternate forum to the dismissal of an action on the ground of inconvenience has been steadfastly adhered to by our courts. See, e. g., Tivoli Realty v. Interstate Circuit, 167 F.2d 155 (5th Cir.), cert. denied, 334 U.S. 837, 68 S.Ct. 1494,92 L.Ed. 1762 (1948); Esso Transport Co. v. Terminales Maracaibo, C.A., 352 F.Supp. 1030 (S.D.N.Y.1972); Domingo v. States Marine Lines, 340 F.Supp. 811 (S.D.N.Y.1972); Fiorenza v. United States Steel International, Ltd., 311 F.Supp. 117 (S.D.N.Y.1969); Restatement of the Law (Second), Conflict of Laws § 84(c)(2). This rule is clearly grounded on due process considerations. If dismissal of an action on forum non conveniens grounds were not conditioned on the availability of another forum, the plaintiff might find himself with a valid claim but nowhere to assert it. See Esso Transport Co. v. Terminales Maracaibo, C.A., supra; Tivoli Realty v. Interstate Circuit, supra. However, where as here the defendants have consented to submit to jurisdiction in the proposed alternate forum, that problem would seem to disappear. Indeed, even without the consent of the defendants to the other forum, it is possible to condition the dismissal of a complaint on such a submission and thus not leave the plaintiff remediless. See Grammenos v. Lemos, 457 F.2d 1067, 1074, n.5 (2d Cir. 1972). Yet in most of the cases where dismissal was conditioned on submission to the jurisdiction of another forum, the courts never had to reach the contention asserted here: namely, that dismissal on forum non conveniens grounds is unwarranted unless the same claims could have been brought originally against the same defendants in the alternate forum, even without their consent. The plaintiffs in those cases appar" }, { "docid": "10353968", "title": "", "text": "and proportionately reducing recovery because of the plaintiffs’ negligence. On appeal, Symonette sought reversal on the basis that the law of the Bahamas, which it contended was applicable, required proof of negligence to establish unseaworthiness and disallowed all recovery in the event of contributory negligence. This Court, in rejecting Symonette’s contention, noted that even if Bahamian law were held to govern, that the district court correctly applied American law since Symonette had failed to prove that the particular substantive doctrines on which it sought to rely were actually a part of the Bahamian law. Unlike the instant case, Symonette appears not to have sought a dismissal on the grounds of forum non conveniens. Thus, this Court in Symonette was not dealing with a forum non conveniens problem, but only with the particular substantive legal rules to be applied in the American forum. Under those circumstances, Symonette was obligated to prove the relevant principles of foreign law (that were different from American law) upon which it sought to rely. Here, if appellees had not filed a motion to dismiss based on forum non conveniens, but only sought to apply Brazilian law, then they would have had the burden to show what that law was. See Fed.R.Civ.P. 44.1. . In Menendez Rodriguez v. Pan American Life Ins. Co., 311 F.2d 429, 433 (5th Cir.1962), vacated and remanded, 376 U.S. 779, 84 S.Ct. 1130, 12 L.Ed.2d 82 (1964), refugees from Cuba sued a Louisiana corporation in the United States district court to recover the cash surrender value of insurance policies confiscated by the communist government of Cuba in 1959. The district court dismissed the action under the doctrine of forum non conveniens, on the theory that the courts of Cuba were open as an alternative forum. This Court reversed, and after stating the test to be applied in determining whether to dismiss on the ground of forum non conveniens, the Court said: “Defendant, under this test, must show that these plaintiffs, refugees from Castro’s Cuba, can obtain justice in the courts of Cuba. The law does not impose upon these Cuban refugees, any" }, { "docid": "4976973", "title": "", "text": "Movants do not allege any “unjust, oppressive, or vexatious” grounds for their claim of forum non conveniens. All primary parties are corporate entities involved in international reinsurance practice and all but RTC and BIBL are present in New York. Trial in New York would therefore be at least as convenient to the primary parties as trial in the United Kingdom. See Top Form Mills v. Sociedad Nationale Ind., Etc., 428 F.Supp. 1237 (S.D.N.Y.1977) (Gagliardi, J.); Odita v. Elder Dempster Lines, Ltd., 286 F.Supp. 547 (S.D.N.Y.1968) (Herlands, J.). Other private interest factors named in Gilbert weigh in favor of retention of jurisdiction. All documentary evidence is now present in the United States and arrangements have been made to depose all foreign witnesses. Allegations by movants concerning greater access in Britain to documents, witnesses and evidence concerning London market practices, therefore, appear unfounded but, even if true, do not amount to the “extreme circumstances” and “material injustice” needed to overcome the strong private interest of plaintiffs’ choice of a domestic forum. Leasco Data Processing Equipment Corp. v. Maxwell, supra, 468 F.2d at 1344 quoting Burt v. Isthmus Development Co., 218 F.2d 353, 357 (5th Cir.1955), cert. denied, 349 U.S. 922, 75 S.Ct. 661, 99 L.Ed. 1254 (1955). Even if we decide that British law applies to the contested substantive issues regarding the disputed cover notes, such application of foreign law is not alone sufficient to warrant dismissal when a balancing of all relevant factors shows that the plaintiffs’ chosen forum is appropriate. Reyno, supra, 454 U.S. at 260, n. 29, 102 S.Ct. at 268, n. 29 (1981); Manu International S.A. v. Avon Products, Inc., 641 F.2d 62, 67 (2d Cir.1981); Gibbons v. Udaras na Gaeltachta, 549 F.Supp. 1094, 1123 (S.D.N.Y.1982) (Ward, J.); Odita v. Elder Dempster Lines, Ltd., supra, 286 F.Supp. at 551. The possibility that primary defendant ICI will not be able to implead third party defendants Leadenhall, Somerset, Meredew, and Harris due to lack of personal jurisdiction might, in a different fact situation, lead to dismissal of the complaint against ICI on forum non conveniens grounds. The inability to implead" }, { "docid": "15145399", "title": "", "text": "or in part on any conditions that may be just. Pursuant to this statute and the common law, the district court found forum non conveniens to be an alternative ground for dismissal in the present ease. On appeal, appellee GLP makes no argument that any other domestic jurisdiction would be a better forum for this suit, but only argues that the case should be dismissed in favor of a trial in West Germany, where GLP has pledged to submit to the jurisdiction of the German court. It has long been recognized that federal courts have the power to refuse jurisdiction over cases which should have been brought in a foreign jurisdiction, rather than in the United States. Prack v. Weissinger, 276 F.2d 446, 448 (4th Cir. 1960); Vanity Fair Milis v. T. Eaton Co., 234 F.2d 633, 645 (2d Cir. 1956); Wilson v. Kansas City Southern Ry., 101 F.Supp. 56, 60 (W.D.Mo.1951); Latimer v. S/A Industries Reunidas F. Matarazzo, 91 F.Supp. 469, 470 (S.D.N.Y.1950); De Sairigne v. Gould, 83 F.Supp. 270, 273 (S.D.N.Y.1949). However, a foreign jurisdiction cannot necessarily be considered “a more suitable and convenient forum in which to require the rights of the parties to be determined.” North Branch Products, Inc. v. Fisher, 109 U.S.App.D.C. 182, 284 F.2d 611 (1960), cert. denied, 365 U.S. 827, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961). “The doctrine that a United States citizen does not have an absolute right to use United States courts usually is expressed in the context of a citizen doing business abroad expecting still to use United States courts.” Thompson v. Palmieri, 355 F.2d 64, 65 (2d Cir. 1966). Moreover, “[mjost [cases that dismiss on this ground] require that the defendant be vexed and harassed by plaintiff’s choice of forum. And usually the defendant was not a United States citizen or resident, and was only served because of minimal contacts with the forum.” Id. at 66. We think it to be of great significance that both plaintiff and the remaining defendant here are residents of the United States and that plaintiff seeks damages for a libelous publication in" }, { "docid": "18413591", "title": "", "text": "fraudulent loan practices on the part of its employee. The court concluded that the claims arose in the district in which the employee’s allegedly fraudulent activities occurred. III. FORUM NON CONVENIENS Though venue be proper in this district, the Court may refuse to exercise its jurisdiction under the doctrine of forum non conveniens if this forum is an inconvenient one for these actions. Generally, if a more convenient federal forum is available, a court may transfer the action to that district under 28 U.S.C. § 1406(a). Where the alternative forum is a state court or a court of a foreign country, however, the court chosen by the plaintiff may dismiss the action. Schertenleib v. Traum, 589 F.2d 1156 (2d Cir. 1978); Poe v. Marquette Cement Mfg. Co., 376 F.Supp. 1054 (D.Md.1974); Levin v. Mississippi River Corp., 289 F.Supp. 353 (S.D.N.Y.1968). The instant plaintiffs contend that this district is an appropriate forum for these actions. Robins, on the other hand, argues that the doctrine of forum non conveniens dictates that the more convenient forum lies in England. Although Lerner and Davis mention that alternative forums are available in Connecticut and Maryland, re spectively, their arguments are all directed at showing the propriety of an English setting. The Supreme Court has not ruled on whether federal or state law governs the forum non conveniens inquiry in a federal court. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). This court concludes that the question is one of federal law. See Grodinsky v. Fairchild Industries, Inc., 507 F.Supp. 1245, 1249 n.2 (D.Md.1981); Fiorenza v. United States Steel International, Ltd., 311 F.Supp. 117 (S.D.N.Y.1969); Lapides v. Doner, 248 F.Supp. 883 (E.D.Mich.1965); 15 Wright, Miller and Cooper, Federal Practice and Procedure, § 3828 (1976 and 1980 Supp.). The defendants have the burden of proving that these cases should be dismissed on forum non conveniens grounds. Schertenleib v. Traum, supra. This burden is a heavy one, for “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Gulf" }, { "docid": "3372752", "title": "", "text": "to North Dakota. See 28 U.S.C. § 1404(a). Whether or not this cause' should be transferred is a question of balancing the conveniences of the parties and their witnesses. B. J. McAdams, Inc. v. Boggs, 426 F.Supp. 1091, 1103-04 (E.D.Pa. 1977); Arnold v. Smith Motor Co., Brookfield, Missouri, 389 F.Supp. 1020, 1023-24 (N.D.Iowa 1974). Yet it is well settled in this Circuit that “[pjlaintiff’s privilege to choose, or not to be ousted from, his chosen forum is highly esteemed.” Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966); Rodriguez v. Pan American Life Ins. Co., 311 F.2d 429, 434 (5th Cir. 1962) vacated on other grounds, 376 U.S. 779, 84 S.Ct. 1130, 12 L.Ed.2d 82 (1964). Accord Gardner Engineering Corp. v. Page Engineering Co., 484 F.2d 27, 33 (8th Cir. 1973); Kisko v. Penn Central Transportation Co., 408 F.Supp. 984, 986 (M.D.Pa.1976); Jones v. United States, 407 F.Supp. 873, 877 (N.D. Tex.1976). Therefore, the Plaintiffs’ choice will not be disturbed unless the Court finds the balance to be strongly in favor of the Defendants. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Rodriguez v. Pan American Life Ins. Co., 311 F.2d 429, 432 (5th Cir. 1962) vacated on other grounds, 376 U.S. 779, 84 S.Ct. 1130, 12 L.Ed.2d 82 (1964). Accord Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970), cert. denied 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971). For the following reasons, the Court finds the balance to be in favor of the Plaintiffs. The Plaintiffs are two migrant farm worker families and the Defendants are two farmers residing in North Dakota. It would appear to be less burdensome on the Defendants to defend in this district than it would be on the Plaintiffs to prosecute their cause in North Dakota. Even if a trial in the Southern District of Texas would burden the Defendants, the uncontroverted fact remains that they chose this district “as the convenient location to transact business with the Plaintiffs.” Wahl v. Foreman, 398 F.Supp. 526, 529 (S.D.N.Y." }, { "docid": "20226035", "title": "", "text": "motion to dismiss must be denied because Svenska is unable to demonstrate that all defendants are subject to jurisdiction in the proposed alternative fora. (Id. at 6-7.) Finally, plaintiff contends that the relevant private and public interest factors do not support Svenska’s motion to dismiss. (Id. at 8-13.) DISCUSSION I. Forum Non Conveniens Dismissal Standard The doctrine of forum non conveniens is based on the principle that “ ‘a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.’ ” Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir.2005) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)); In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec., 1984, 634 F.Supp. 842, 845 (S.D.N.Y. 1986) (Keenan, J.) (“The doctrine of forum non conveniens allows a court to decline jurisdiction, even when jurisdiction is au thorized by a general venue statute.”), aff'd, 809 F.2d 195 (2d Cir.1987). Notwithstanding the propriety of the action under the venue statute, “dismissal will ordinarily be appropriate where trial in the plaintiffs chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The Supreme Court has declined to fashion the exact circumstances that would “ ‘justify or require either grant or denial of remedy.’ ” Id. (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. 839). Consequently, a district court’s inquiry is highly fact-specific. Id. (“ ‘Each case turns on its facts.’ ” (quoting Williams v. Green Bay & W.R. Co., 326 U.S. 549, 557, 66 S.Ct. 284, 90 L.Ed. 311 (1946))); Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivianos, 712 F.Supp. 383, 392-93 (S.D.N.Y.1989) (Leisure, J.) (“The Supreme Court has emphasized the flexibility with which the District Court must approach a forum non conveniens determination, and consequently there are no specific circumstances which would require either a" }, { "docid": "14953070", "title": "", "text": "be had and that complete relief can be obtained in the supposedly more convenient court.” 15 C. Wright & A. Miller, Federal Practice and Procedure, § 3828, at 179; see North Branch Products, Inc. v. Fisher, 284 F.2d 611, 613-14 (D.C.Cir.1960), cert. denied, 365 U.S. 827, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961). There being some doubt as to the current status of the defendants’ Canadian jurisdictional challenges, the court will not rest its determination of the motion under discussion on that factor. That such a question exists, however, serves only to weaken the defendants’ other contentions regarding the propriety of the dismissal being sought. As regards the merits of the CMH-Okanagan motion, the court notes initially that the burden imposed upon the defendants to obtain the relief they presently seek is a decidedly heavy one. See 15 C. Wright & A. Miller, Federal Practice and Procedure, § 3828, at 180. When, as has been done in the present matter, it is shown that there exists a significant relationship between the forum at issue and the litigation, the plaintiff’s choice of forum must be accorded great weight and, for that reason, “should rarely be disturbed.” Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). This, moreover, is especially true in situations where, as is also the case here, the plaintiff is a United States resident and the only alternative forum available is a foreign jurisdiction. See Wahl v. Pan American World Airways, Inc., 227 F.Supp. 839, 841 (S.D.N.Y.1964); Shulman v. Compagnie Generale Transatlantique, 152 F.Supp. 833, 836 (S.D.N.Y.1957). When such circumstances are present, the movant’s burden becomes considerable. To establish that the relief being sought — dismissal — is warranted, the defendant in essence must show not only that the proposed forum would be a significantly more convenient one, but also that to subject it [the defendant] to trial in the forum at issue would be manifestly unjust, vexatious and/or oppressive. Ionescu v. E. F. Hutton & Co. (France) S.A., 465 F.Supp. 139, 145 (S.D.N.Y.1979); see Ciprari v. Servicos Aereos Cruzeiro do" }, { "docid": "13388185", "title": "", "text": "nor Fitzgerald v. Westland Marine Corp., 369 F.2d 499 (2d Cir. 1966), relied on by defendant, was there presented the question presented in this case, of the weight to be accorded the prospective unavailability of the alternate forum proposed by defendant. We find this new factor in the equation to be most significant. Admittedly, in the instant case, there are many factors of convenience that weigh strongly in defendant’s favor. The witnesses and the evidence are primarily in the Bahamas, where the accident occurred, and Bahamian law is presumably applicable. There is also the matter, of which we are acutely aware, of the overburdened calendars in this Court. We have given these factors substantial weight. However, we are mindful of the overriding principle, articulated in Gilbert, that plaintiff’s choice of forum is not to be disturbed unless the balance of convenience lies heavily with the defendant. We find that the factor of the prospective unavailability of the alternate forum in the Bahamas outweighs the above factors relied on by defendant. The Supreme Court clearly indicated in Gilbert that the doctrine of forum non conveniens presupposes the existence of the alternate forum in which suit can be brought. 330 U.S. at 506-507, 67 S.Ct. at 842. When that alternate forum is not truly available for any reason, as in the instant case, the doctrine of forum non conveniens will not be applied to dismiss the action. Rodriguez v. Pan American Life Ins. Co., 311 F.2d 429 (5th Cir. 1962), vacated on other grounds, Menendez Rodriguez v. Pan American Life Ins. Co., 376 U.S. 779, 84 S.Ct. 1130, 12 L.Ed.2d 82 (1964); North Branch Products, Inc. v. Fisher, 109 U.S.App.D.C. 182, 284 F.2d 611 (D. C. Cir. 1960), cert. denied, 365 U.S. 827, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961); Constructora Ordaz, N.V. v. Orinoco Min. Co., 262 F.Supp. 90 (D.C.Del.1966); Glicken v. Bradford, 204 F.Supp. 300 (S.D.N.Y.1962). See especially the Opinion of the late Hon. William B. Her-lands in Odita v. Elder Dempster Lines, Ltd., 286 F.Supp. 547 (S.D.N.Y.1968), where the facts were strikingly similar to those in the instant case." }, { "docid": "18886485", "title": "", "text": "plaintiff the generally accorded privilege of bringing action where he chooses, but makes it possible for him to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate.’ All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952); 1 Moore, Federal Practice 0.145[5]. A decision to dismiss ‘presupposes at least two forums in which the defendant is amenable to process . . . [and] furnishes criteria for choice between them.’ Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). The factors to be taken into consideration include those relevant to the decision on refusal to exercise subject matter jurisdiction, particularly the issue of availability of another forum, as well as other practical questions such as access to sources of proof, and convenience and cost of obtaining or compelling attendance of witnesses. See Gkiafis v. Steamship Yiosonas, 387 F.2d 460 (4th Cir. 1967); Odita v. Elder Dempster Lines, Ltd., 286 F.Supp. 547 (S.D.N.Y.1968); Voyiatzis v. National Shipping and Trading Corp., 199 F.Supp. 920 (S.D.N.Y.1961). On the issue of availability of an alternative forum, the parties may wish to introduce proof of foreign law (cf. Rule 44.1, Fed.R.Civ.P.; 5 Moore, Federal Practice, 44.1.01 [1]); normally when the plaintiff is remanded to a foreign forum, the defendant agrees on the record to submit to jurisdiction elsewhere and to post security for any judgment awarded there. See, e.g., Garis v. Compania Maritima San Basilio, 386 F.2d 155 (2d Cir. 1967); Berendson v. Rederiaktiebolaget Volo, 257 F.2d 136 (2d Cir.), cert. denied, 358 U.S. 895, 79 S.Ct. 156, 3 L.Ed.2d 121 (1958); Lambiris v. Neptune Maritime Co., 38 A.D.2d 528, 326 N.Y.S.2d 862 (1st Dept. 1971).” 457 F.2d at 1074, fn. #5. It is particularly noteworthy that in its amended footnote the Court of Appeals observed that “normally when the plaintiff is remanded to a foreign forum, the defendant agrees on the record to submit to jurisdiction elsewhere and to post security for any judgment awarded there.” This statement contrasts markedly with the court’s citation in its" } ]

[ { "docid": "22124385", "title": "", "text": "individualized claims as applied to the facts presented in the three stages of plaintiffs’ case. III. CONSPIRACY CLAIMS A civil conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties ‘to inflict a wrong against or injury upon another,’ and ‘an overt act that results in damage.’” Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir. 1973) (citation omitted). In order to prove the existence of a civil conspiracy, a plaintiff is not required to provide direct evidence of the agreement between the conspirators; “[circumstantial evidence may provide adequate proof of conspiracy.” Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir. 1971). See also United States v. Varelli, 407 F.2d 735, 741—42 (7th Cir. 1969). Absent the testimony of a coconspirator, it is unlikely that direct evidence of a conspiratorial agreement will exist. Thus, the question whether an agreement exists should not be taken from the jury in a civil conspiracy case so long as there is a possibility that the jury can “infer from the circumstances [that the alleged conspirators] had a ‘meeting of the minds’ and thus reached an understanding” to achieve the conspiracy’s objectives. Adickes v. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). A plaintiff seeking redress need not prove that each participant in a conspiracy knew the “exact limits of the illegal plan or the identity of all participants therein.” Hoffman-LaRoche, Inc., supra, 447 F.2d at 875. An express agreement among all the conspirators is not a necessary element of a civil conspiracy. The participants in the conspiracy must share the general conspiratorial objective, but they need not know all the details of the plan designed to achieve the objective or possess the same motives for desiring the intended conspiratorial result. To demonstrate the existence of a conspiratorial agreement, it simply must be shown that there was “a single plan, the essential nature and general scope of which" } ]

[ { "docid": "10887492", "title": "", "text": "or more civil conspiracies designed to deprive plaintiffs of their First Amendment rights by disrupting their organizations and impeding their associations with other persons. One conspiracy was alleged to exist within MPD, a second was alleged between MPD and the FBI, and the third allegedly existed within the FBI. We will first consider the two conspiracies involving the MPD. A civil conspiracy is defined as an agreement between two or more people to participate in an unlawful act or a lawful act in an unlawful manner. See Halberstam v. Welch, 705 F.2d 472, 477 (D.C.Cir. 1983); Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir.1979), modified on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). An express agreement among all conspirators is not necessary. “A plaintiff .... need not prove that each participant in a conspiracy knew the ‘exact limits of the illegal plan or the identity of all participants therein.’ ” Hampton, 600 F.2d at 621 (quoting Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir.1971)). The conspirators “must share the general conspiratorial objective, but they need not know all the details of the plan ... or possess the same motives.” Id. Thus, to “demonstrate the existence of a conspiratorial agreement, it simply must be shown that there was ‘a single plan, the essential nature and general scope of which [were] known to each person who is to be held responsible for its consequences.” Id. (quoting Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir.1971)). To make the conspiracy actionable, there must also be an overt act in furtherance of the object of the conspiracy that injures plaintiff in his person or property or, in a section 1985(3) action, which deprives him of having or exercising any right or privilege of a citizen of the United States. The District defendants argue,\".. first, that they engaged only in lawful intelligence-gathering and therefore did not agree among themselves to do an unlawful act or a lawful act by unlawful means. Second, they argue, the evidence failed to demonstrate the existence of an MPD-FBI joint conspiracy." }, { "docid": "22406040", "title": "", "text": "may not recover for loss of society and companionship under Section 1983. Moreover, even if they had possessed full knowledge of the facts surrounding the shooting, Wisconsin tort law does not give them a right to recover absent proof of pecuniary injury. A. Conspiracy to Conceal the Facts It must first be determined whether plaintiffs adduced sufficient evidence to establish a conspiracy to conceal the facts and to establish that Johnson and Shaffer were members of the alleged conspiracy. As this Court outlined in Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979), reversed in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670: A civil conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties ‘to inflict a wrong against or injury upon another,’ and ‘an overt act that results in damage.’ ” Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir.1973) (citation omitted). A plaintiff seeking redress need not prove that each participant in a conspiracy knew the “exact limits of the illegal plan or the identity of all participants therein.” Hoffman-LaRoche, Inc., supra, 447 F.2d [872 (7th Cir.1971)] at 875. An express agreement among all the conspirators is not a necessary element of a civil conspiracy. The participants in the conspiracy must share the general conspiratorial objective, but they need not know all the details of the plan designed to achieve the objective or possess the same motives for desiring the intended conspiratorial result. To demonstrate the existence of a conspiratorial agreement, it simply must be shown that there was “a single plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for its consequences.” Id. 600 F.2d at 620-621. Rarely in a conspiracy case will there be direct evidence of an express agreement among all the conspirators to conspire. As this Court also pointed out in Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872," }, { "docid": "5200591", "title": "", "text": "was simply an order from the creditor to Gassman to repossess the vehicle. As such, the creditor’s order carried no more weight than Gassman’s own word which, in the context of this private repossession, the Deputies could not accept over Sheila’s competing claim. See Cochran, 656 F.3d at 308 (noting that where police officers take an active role in a repossession or eviction, “they are no longer mere passive observers and courts have held that the officers are not entitled to qualified immunity”). Moreover, again, there can hardly be any debate, on the extant facts, that a reasonable jury could find the Deputies’ extraction of Sheila from the vehicle she was entitled to possess was unreasonable. Accordingly, the district court erred in its qualified immunity analysis. The Deputies’ motion for summary judgment based on qualified immunity should have been denied. 2. Conspiracy Claim The Hensleys alleged in their First Amended Complaint that the Deputies and Gassman conspired to violate their civil rights by “work[ing] together to unlawfully seize the 2000 Buick LaSabre [sic] from the Hensley’s residence.” The standard for proving a civil conspiracy claim in the Sixth Circuit is as follows: A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir.1985). The district court concluded that the Hensleys failed to establish a conspiracy claim because there was no evidence of an unlawful agreement. Although a plaintiff may rely on circumstantial evidence to establish an agreement among the conspirators, see Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir.2003) (citing Weberg v. Franks, 229 F.3d 514, 528" }, { "docid": "6761862", "title": "", "text": "Court Judge Martha D. Anderson’s Motion to Dismiss the § 1983 claim because the Smith Plaintiffs have failed to allege sufficient facts to support such a claim. The Smith Plaintiffs Second Amended Complaint alleges as to Judge Martha D. Anderson: 7b. Defendant/Respondent Oakland County Circuit Court Judge, Hon. Martha D. Anderson (“Defendant Anderson”) held hearings and entered orders affecting the rights of Plaintiffs and their minor children. Second Amended Complaint P. 2 95h. Defendant Oakland County Court and Defendant Anderson failed to refer the Petition and motions before her to a visiting judge as required by MCL 710.45(7), and dismissed and/or denied Plaintiffs’ and GAL Birch’s motions without providing them a hearing. Id. at P. 20. These two paragraphs of allegations, taken in a light most favorable to the non-moving party, do not survive Defendant Judge Martha D. Anderson’s Motion to Dismiss. Further, in support of the granting of Judge Anderson’s Motion to Dismiss the Court notes that the Smith Plaintiffs request for relief at the end of the Second Amended Complaint does not mention Judge Robertson. D. Defendants Jonathan and Donna Cromwell; Conspiracy Charge Against All Defendants The Cromwell Defendants contend that they are merely beneficiaries of the orders entered by the state-court judges and, as such, the claims pursued against them under § 1983 are impermissible appeals of those orders. The Smith Plaintiffs allege that the Cromwell Defendants participated in a conspiracy under § 1983 to deprive them of their due process rights. As the Sixth Circuit has stated: A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspiracy need not have known all the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan that the alleged co-conspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Hooks v. Hooks, 771 F.2d 935," }, { "docid": "9447415", "title": "", "text": "cases in which there are no allegations of cooperation or concerted action between state and private actors. Cooper v. Parrish, 203 F.3d 937, 952 n. 2 (6th Cir.2000) (“If a private party has conspired with state officials to violate constitutional rights, then that party qualifies as a state actor and may be held liable pursuant to § 1983 ... ”); Moore v. City of Paducah, 890 F.2d 831, 834 (6th Cir.1989) (holding that individuals who conspire with state actor to deprive individuals of their federally-protected rights may be found to have acted under color of state law for purposes of § 1983 liability). Private persons may be held liable under § 1983 if they willfully participate in joint action with state agents. Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966) (stating that to act under color of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.); Hooks v. Hooks, 771 F.2d 935, 943 (6th Cir.1985) ' (“Private persons jointly engaged with state officials in a deprivation of civil rights are acting under color of law for purposes of § 1983.”). The standard for proving a civil conspiracy was set forth in Hooks v. Hooks, 771 F.2d 935 (6th Cir.1985): A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Id. at 943-44; Moore, 890 F.2d at 834; see also Pillette v. Detroit Police Dept.," }, { "docid": "23633463", "title": "", "text": "government’s case. The constructive knowledge amendment to the False Claims Act applies only to the information submitted. See 31 U.S.C.A. § 3729(b) (Supp.1990). It does not eliminate the need under subsection (a)(1) for some action by the defendant whereby the claim is presented or caused to be presented. Cf. United States v. Bornstein, 423 U.S. 303, 313, 96 S.Ct. 523, 530, 46 L.Ed.2d 514 (1976)) (under (a)(1) court must look to “the specific conduct of the person from whom the Government seeks to collect”). Nor does the constructive knowledge amendment to the Act eliminate the need under subsection (a)(3) for proving that a person is a member of the alleged conspiracy. As we read the district court’s opinion, the conduct for which Murphy has been held liable is the submission of claims by his alleged co-conspirator Commonwealth Electric. This would be permissible only if Murphy was truly a member of the conspiracy. See United States v. Cripps, 460 F.Supp. 969, 975-76 (E.D.Mich.1978) (Kennedy, C.J.). A recent authoritative statement of what is required to prove a civil conspiracy is found in Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir.1985): A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. The question of whether a person was a participant in a conspiracy is a question of fact. See United States v. August, 745 F.2d 400, 405 (6th Cir.1984) (criminal case); Cf. Ghandi v. Police Dept. of Detroit, 747 F.2d 338, 345 (6th Cir.1984) (recognizing that cases involving conspiracy allegations are not well suited to summary judgment). Murphy argued before the district court, as he does here, that" }, { "docid": "15902771", "title": "", "text": "burden with direct evidence of discrimination by Robinson, we need not consider whether there is also circumstantial evidence of Robinson’s discriminatory animus. B. Conspiracy Although there is no direct evidence that the remaining three Defendants — Franks, Chapman, and Lauder-dale — discriminated against Plaintiff because she is white, Plaintiff has alleged and offered evidence to establish that these three defendants conspired with Robinson to deprive Plaintiff of equal protection of the laws because she is white and they are black. A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir.1985) (citations omitted); see also Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.1987) (stating that conspiracy claims under § 1983 must be pled with some degree of specificity). 1. Franks Franks acknowledged in his deposition testimony that the Personnel Director is not involved in the disciplinary process. Franks also verified that after a disciplinary hearing, a recommendation is made to the Warden. Despite his lack of a role in the process, Franks admittedly interceded in Benedict’s investigation, knowing Benedict would make a recommendation to Robinson. Although Franks explained that he did so because other employees were worried that the matter would be swept under the rug, he could not identify the employees who expressed that concern. Most tellingly, Franks apparently lied in a recorded message to Benedict about a conversation with Janice Jennings in Labor Relations, in his efforts to improperly influence Benedict’s decision. Finally, Franks acknowledged that Robinson discussed the matter with him, although not in depth. From Franks’ abnormal and deceitful interjection into Benedict’s investigation," }, { "docid": "9447416", "title": "", "text": "is a willful participant in joint activity with the State or its agents.); Hooks v. Hooks, 771 F.2d 935, 943 (6th Cir.1985) ' (“Private persons jointly engaged with state officials in a deprivation of civil rights are acting under color of law for purposes of § 1983.”). The standard for proving a civil conspiracy was set forth in Hooks v. Hooks, 771 F.2d 935 (6th Cir.1985): A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Id. at 943-44; Moore, 890 F.2d at 834; see also Pillette v. Detroit Police Dept., 661 F.Supp. 1145 (E.D.Mich.1987), aff'd, 852 F.2d 1288 (6th Cir.1988). In the present complaint, all of the elements of conspiracy are sufficiently alleged: it is alleged that a single plan existed (“was the result of an agreement”); that the conspirators shared in the general conspiratorial objective (“to deprive [the Union] of its rights, privileges and immunities”), and that an overt act was committed (that Memphis “continuously conferred with agents of Phillips and Pro-Tech before confronting members of the [Union]” and “that Phillips directed and conspired with the City of Memphis to direct police officers to harass, threaten and intimidate the plaintiff’) in furtherance of the conspiracy that caused injury (several violations are alleged). J.A. at 6; Compl. ¶ 23. Accordingly, the Union has alleged facts, which if believed, state a claim against Phillips for which relief could be granted. D. Section 1983 Liability for Pro-Tech In the complaint, the Union contends that Pro-Tech provides security services for Phillips, and that some Pro-Tech employees are off-duty officers of the MPD. It is further contended that “Pro-Tech" }, { "docid": "22434080", "title": "", "text": "determination that Lenard was not beaten will not be disturbed. Counts II and III of the complaint charged the named officers with violation of §§ 1985(2) and (3). The jury found, however, only Argento and Sansone liable for civil rights conspiracy. Argento and Sansone argue that they cannot be liable for a conspiracy to “beat” when the jury found that there was no “beating.” However, the charge given to the jury was not a “conspiracy to perform a beating” but rather a conspiracy to deprive [Lenard] due course of justice and equal protection of the law. (Tr. 2202-03). As this court outlined in Hampton v. Hanrahan, 600 F.2d 600 (7th Cir.1979), rev’d in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980): A civil conspiracy is “a combination of two. or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties ‘to inflict a wrong against or injury upon another,’ and ‘an overt act that results in damage.’ ” Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir.1973) (citation omitted). ****** A plaintiff seeking redress need not prove that each participant in a conspiracy knew the “exact limits of the illegal plan or the identity of all participants therein.” Hoffman-LaRoche, Inc., supra, 447 F.2d [872 (7th Cir.1971) ] at 875. An express agreement among all the conspirators is not a necessary element of a civil conspiracy. The participants in the conspiracy must share the general conspiratorial objective, but they need not know all the details of the plan designed to achieve the objective or possess the same motives for desiring the intended conspiratorial result. To demonstrate the existence of a conspiratorial agreement, it simply must be shown that there was “a single plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for its consequences.” Id. 600 F.2d at 620-21. Thus, there cannot be a civil cause of action for conspiracy under §" }, { "docid": "5200592", "title": "", "text": "Hensley’s residence.” The standard for proving a civil conspiracy claim in the Sixth Circuit is as follows: A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir.1985). The district court concluded that the Hensleys failed to establish a conspiracy claim because there was no evidence of an unlawful agreement. Although a plaintiff may rely on circumstantial evidence to establish an agreement among the conspirators, see Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir.2003) (citing Weberg v. Franks, 229 F.3d 514, 528 (6th Cir.2000)), the district court correctly concluded that the Hensleys failed to establish an agreement to engage in unlawful action. The Hensleys rely on the Deputies’ conduct during the course of the repossession to establish the conspiratorial agreement. However, the Deputies’ conduct is just as consistent with independent conduct as it is with a conspiracy. , The evidence shows that Gassman called the sheriffs department’s central dispatch to request a “civil standby” during the repossession, and he did not request the Deputies by name. There is no indication that when the Deputies met Gassman, they discussed anything other than that the Deputies would follow Gassman to the Hensley residence. As set forth above, police officers may be present during a repossession in order to keep the peace without violating the constitution, and it appears that this is exactly what Gassman and the Deputies had in mind before the Deputies engaged in unconstitutional conduct during the repossession. See Re/Max Int’l, Inc. v. Realty One, Inc., 173 F.3d 995, 1009 (6th Cir.1999) (“Certainly, much of the plaintiffs’" }, { "docid": "15902770", "title": "", "text": "housed in the unit [where] the incident took place.” We find it odd that a person conducting a disciplinary hearing, charged with the duty of determining whether sufficient evidence exists to support the charges, errs when he engages in an independent evaluation of the evidence presented. As Franks outlined in his deposition testimony, it was standard procedure for a disciplinary hearing to be conducted after an initial investigation was completed, and prior to a recommendation being made to the Warden. We are also at a loss to understand why it was improper for Benedict, as factfinder, to consider other information relevant to the investigation. Robinson’s total disregard of the conflicting evidence and spurious attack on Benedict cast doubt on Robinson’s explanation. Robinson’s written statement and deposition testimony suggest that race was the real reason behind his actions toward Plaintiff. In sum, we hold that Robinson’s statements provide direct evidence of racial discrimination, thereby creating a genuine issue of material fact. The district court erred in granting summary judgment to Robinson. Having met her summary judgment burden with direct evidence of discrimination by Robinson, we need not consider whether there is also circumstantial evidence of Robinson’s discriminatory animus. B. Conspiracy Although there is no direct evidence that the remaining three Defendants — Franks, Chapman, and Lauder-dale — discriminated against Plaintiff because she is white, Plaintiff has alleged and offered evidence to establish that these three defendants conspired with Robinson to deprive Plaintiff of equal protection of the laws because she is white and they are black. A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Hooks" }, { "docid": "23633464", "title": "", "text": "civil conspiracy is found in Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir.1985): A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. The question of whether a person was a participant in a conspiracy is a question of fact. See United States v. August, 745 F.2d 400, 405 (6th Cir.1984) (criminal case); Cf. Ghandi v. Police Dept. of Detroit, 747 F.2d 338, 345 (6th Cir.1984) (recognizing that cases involving conspiracy allegations are not well suited to summary judgment). Murphy argued before the district court, as he does here, that his conscious avoidance of knowledge of the conspiracy was inconsistent with participation in the conspiracy. See Ciambrone, 787 F.2d at 809-10. After carefully reviewing the record and briefs, and hearing the arguments of counsel, we are of the view that a reasonable trier of fact could conclude that Murphy was not a participant in the conspiracy. We do not doubt that the government’s proof allows the inference that Murphy was a member of the conspiracy; however, it does not compel that conclusion. This is especially true given that resolution of this case requires a determination of Murphy’s state of mind, viz., whether he shared the conspiratorial objective. See Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988) (questions of intent are less prone to summary judgment). We emphasize that in reviewing the summary judgment granted by the district court against Murphy, we must view inferences from the proof in the light most favorable to him. However, we are in no wise suggesting or implying what the eventual outcome of this case" }, { "docid": "5086005", "title": "", "text": "action under 42 U.S.C. § 1983. Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir.1985); Collyer v. Darling, 98 F.3d 211 (6th Cir.1996). A “civil conspiracy” is an agreement between two or more persons to injure another by unlawful action. An express agreement among the conspirators is not necessary to find the existence of a civil conspiracy, nor must each conspirator know all the details of each plan. Id. All that must be shown to sustain an action for civil conspiracy is that: 1) there was a single conspiratorial plan; 2) the conspirators shared a common objective; and 3) an overt act was committed in furtherance of the conspiracy’s objective that caused injury to the plaintiff. Id. Plaintiff asserts that Officer Popp and Chief Anderson conspired to injure him. Plaintiff does not have a separate argument section in his brief for this conspiracy claim. Rather, he contends that the facts he put forth in support of his retaliation claim are also sufficient to sustain a civil conspiracy claim. Officer Popp and Chief Anderson, in separate motions, move for summary judgment because they allege that they are exempt from liability under the “intracorporate conspiracy doctrine.” The intracorporate conspiracy doctrine states that “members of the same legal entity cannot conspire with one another as long as their alleged acts are within the scope of their employment.” Jackson v. City of Columbus, 194 F.3d 737, 753 (6th Cir.1999). This doctrine arose in the context of antitrust suits. The core of this doctrine is that a corporate officer and the entity itself should not inherently be thought of as two separate persons for the purpose of a conspiracy.. Id. (citing Harris v. Board of Educ., 798 F.Supp. 1331, 1346 (S.D.Ohio 1992) (“[Sjimply joining corporate officers as defendants in their individual capacities is not enough to make them persons separate from the corporation in legal contemplation. The plaintiff must also allege ... that they acted other than in the normal course of their corporate duties”)); Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 510 (6th Cir.1991) (“[I]f all of" }, { "docid": "6325943", "title": "", "text": "707 F.2d 288, 289 (7th Cir.1983), a father brought a § 1983 claim on behalf of himself and his three minor children against county welfare and law-enforcement officers. The father alleged that the defendants had violated his due process rights by taking custody of his children without notice or opportunity to be heard. Id. at 289-90. The court concluded that the father had an fundamental liberty interest in the custody of his children and, therefore, they could not be removed from his custody without notice or opportunity to be heard. Id. at 290-91. It found, however, that the father had received due process in the form of a prompt, state-initiated post-deprivation hearing. Id. at 291-92. It therefore affirmed the district court’s grant of summary judgment in favor of the defendants. Id. at 292. In 1985, in Hooks v. Hooks, 771 F.2d 935, 937-38 (6th Cir.1985), a mother brought a § 1983 claim against her former husband, his parents, two of his friends, officers and employees of a county sheriffs department, and an employee of the state Department of Human Services. The mother alleged that the defendants had violated her due process rights by taking custody of her two minor children without notice or opportunity to be heard. Id. at 938. The court concluded that the mother had stated a claim for violation of her due process rights, at least in part because the children had been removed from her custody and immediately taken to another state, “effectively eliminating the opportunity for plaintiff to receive a post-deprivation hearing.” Id. at 942. The court also discussed the extent to which co-conspirators could be held liable to the mother: Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury" }, { "docid": "23633471", "title": "", "text": "kind of “arrangement” he understood that to mean, Murphy explained that since there were only two or three competitors for the job, Trepte had a good chance to rig the bid. Murphy admits that he told Trepte, “whatever you are going to do up there [in Chattanooga], you are doing it on your own, I’m not involved in it.” Murphy’s defense is that he had no knowledge prior to the submission of the bids that an illegal arrangement had been reached. Yet Count II is a conspiracy count, and as long as Murphy agreed with Trepte’s plan to rig the bid at his meeting with Kale, Murphy is liable even under the pre-1986 version of the False Claims Act applicable to this ease. He need not have known every detail of the arrangement, nor participated in the actual meeting to be liable as a conspirator. Although the essence of conspiracy is agreement, an express agreement is not necessary to prove a civil conspiracy. Hobson v. Wilson, 787 F.2d 1, 51 (D.C.Cir.1984); Lenard v. Argento, 699 F.2d 874, 882 (7th Cir.1983). Tacit understanding, created and executed over time, is enough to constitute an agreement even absent personal communication. Direct Sales Co. v. United States, 319 U.S. 703, 714, 63 S.Ct. 1265, 1271, 87 L.Ed. 1674 (1943). Once the existence of a conspiracy has been established, slight evidence is needed to connect a particular participant to the conspiracy. United States v. Braasch, 505 F.2d 139, 148 (7th Cir.1974). Each conspirator is liable for the overt acts committed by any member of the conspiracy, even if the defendant did not personally commit the acts. Poliafico v. United States, 237 F.2d 97, 104 (6th Cir.1956). As the majority’s opinion indicates, “[e]ach conspirator need not have known all of the details of the illegal plan or all of the participants involved”. Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir.1985). I find no genuine issues of material fact remaining on the question of the conspiracy’s existence or Murphy’s actual knowledge of its existence and agreement with its participants. That he tried to insulate himself from" }, { "docid": "5086004", "title": "", "text": "a personal stake in the outcome of this case. Moreover, Chief Anderson admitted under oath that he had Plaintiff charged with disorderly conduct, at least in part, based on his disparaging comments about the Yorkville police. Chief Anderson had ample opportunity to correct this inculpatory statement if he thought he made it in error. He did not do so. He cannot now revoke it in an attempt to escape its consequences. Chief Anderson’s deep personal involvement in this case, his knowledge of Plaintiffs anti-police comments, and his admission that he arrested Plaintiff in part based on those comments removes any genuine issue of material fact regarding Chief Anderson’s retaliatory intent. As a result, this Court GRANTS Plaintiffs Motion for Summary Judgment against Chief Anderson on Plaintiffs retaliatory prosecution claim under 42 U.S.C. § 1983 and DENIES Chief Anderson’s Motion for Summary Judgment on Plaintiffs retaliatory prosecution claim under 42 U.S.C. § 1983. C. The Parties’ Cross-Motions for Summary Judgment on Plaintiffs Civil Conspiracy Claim Under 42 U.S.C. § 1983 A civil conspiracy is a cognizable action under 42 U.S.C. § 1983. Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir.1985); Collyer v. Darling, 98 F.3d 211 (6th Cir.1996). A “civil conspiracy” is an agreement between two or more persons to injure another by unlawful action. An express agreement among the conspirators is not necessary to find the existence of a civil conspiracy, nor must each conspirator know all the details of each plan. Id. All that must be shown to sustain an action for civil conspiracy is that: 1) there was a single conspiratorial plan; 2) the conspirators shared a common objective; and 3) an overt act was committed in furtherance of the conspiracy’s objective that caused injury to the plaintiff. Id. Plaintiff asserts that Officer Popp and Chief Anderson conspired to injure him. Plaintiff does not have a separate argument section in his brief for this conspiracy claim. Rather, he contends that the facts he put forth in support of his retaliation claim are also sufficient to sustain a civil conspiracy claim. Officer Popp and Chief Anderson, in separate" }, { "docid": "5228115", "title": "", "text": "basis for the plea was established at the plea proceeding. 769 F.2d 314, 318, 323-24 (6th Cir.1985). Accordingly, we hold that appellees were under no clearly established obligation to disclose exculpatory Brady material to the prosecutors in time to be put to effective use in plea bargaining. We do not decide whether appellants have a constitutional right to receive exculpatory Brady material from law enforcement prior to entering into a plea agreement. 4. Appellants assert that the district court erred in granting summary judgment to appellees on their conspiracy claims. A civil conspiracy claim under § 1983 or Bivens lies where there is “an agreement between two or more persons to injure another by unlawful action.” Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir.2007). To prevail on such a claim in this context, appellants must demonstrate “that (1) a single plan existed, (2) the conspirators shared a conspiratorial objective to deprive the plaintiffs of their constitutional rights, and (3) an overt act was committed” in furtherance of the conspiracy that caused the injury. Id. Plaintiffs are not required to prove an express agreement among all the conspirators, and “[e]ach conspirator need not have known all of the details of the illegal plan or all of the participants involved.” Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir.1985). In opposing a motion for summary judgment, plaintiffs are entitled to “rely on circumstantial evidence to establish an agreement among the conspirators.” Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir.2012). Nevertheless, “[i]t is well-settled that conspiracy claims must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient to state such a claim under § 1983” or Bivens. Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.1987) (affirming grant of summary judgment where “Plaintiffs allegations lack[ed] the requisite material facts and specificity necessary to sustain a conspiracy claim”). The district court granted summary judgment on two grounds: appellants failed to produce any specific evidence that the defendants shared a single plan and a common objective, and appellants failed to prove" }, { "docid": "22277114", "title": "", "text": "his involvement in a grievance procedure brought on behalf of Jehovah’s witnesses who complained of policies which violated their religious beliefs; and (4) his suggested adoption of a communicable disease policy that included AIDS along with his refusal to reveal the names of staff members with AIDS. With regards to his efforts to report client abuse, Collyer’s strongest evidence of motive on the defendant’s part is the media attention directed at the BDC and its sister facilities in the early to middle 1980s. He asserts that the center was under intense pressure because of outside scrutiny over numerous incidents of ehent abuse and that their efforts to punish him were lodged only because he complained so often about possible client abuse. The standard for proving a civil conspiracy is as follows: A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to .find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir.1985). The lower court was correct in concluding that the defendants were entitled to summary judgment on Collyer’s claims because Collyer has not shown that any individual defendant acted as a result of Collyer’s speech, nor is there evidence of a single plan to violate Collyer’s First Amendment rights. The link Collyer attempts to establish between the defendants is through his personnel file or as he has called it, the “secret file.” It appears that the file contained, at various points in time, performance evaluations, job descriptions and evidence of between five and seven suspensions. The file also contained a 1986 report completed by an independent investigator concluding that Col-lyer’s claims were too numerous to be untrue" }, { "docid": "22249461", "title": "", "text": "the custody of her children without due process, liability under § 1983 could extend to Stephen Hooks as well, Lugar, 457 U.S. at 942, 102 S.Ct. at 2756 (private party initiating attachment procedure under state law later successfully challenged as unconstitutional acts under color of state law and is liable for participating in deprivation), although at trial he would not necessarily be foreclosed from asserting an affirmative defense of good faith, id. at 942 n. 23, 102 S.Ct. at 2756 n. 23. As to the other Texas defendants, whether they are also liable depends on whether they were participants in the alleged conspiracy. III. CONSPIRACY A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. See Hobson v. Wilson, 737 F.2d 1, 51-52 (D.C.Cir.1984), cert. denied, — U.S. ---, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985); Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir.1979), cert. denied in part, granted in part and rev’d on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). Applying these principles to the instant case, and assuming for the time being all of plaintiffs allegations to be true, there are no facts or inferences therefrom to support her civil rights claim against Mullins and Churchill, or Charlotte and Bill Hooks. In her complaint, she alleged that Defendants Mullins and Churchill were induced to take these actions so that Defendants Hooks could theeafter [sic] lure her into Texas, cause her arrest, and either obtain judicial custody of the children while she was under arrest and facing trial on felony charges, or in the alternative to extort Plaintiffs agreement" }, { "docid": "6761863", "title": "", "text": "Judge Robertson. D. Defendants Jonathan and Donna Cromwell; Conspiracy Charge Against All Defendants The Cromwell Defendants contend that they are merely beneficiaries of the orders entered by the state-court judges and, as such, the claims pursued against them under § 1983 are impermissible appeals of those orders. The Smith Plaintiffs allege that the Cromwell Defendants participated in a conspiracy under § 1983 to deprive them of their due process rights. As the Sixth Circuit has stated: A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspiracy need not have known all the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan that the alleged co-conspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Hooks v. Hooks, 771 F.2d 935, 943-944 (6th Cir.1985). In order for the Smith Plaintiffs claim under § 1983 to proceed against the Cromwell Defendants, the Cromwell Defendants must have been “jointly engaged” with state officials. See Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Private persons, such as the Cromwell Defendants, cannot be considered “persons” under § 1983 unless they jointly engage with state officials in taking the alleged unconstitutional action. “Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge.” Id. In this case, however, the Smith Plaintiffs allege active participation by the Cromwell Defendants in securing an unconstitutional order. Specifically, the Smith Plaintiffs allege: Defendant Cromwells authorized and participated in action intentionally designed to deprive Plaintiffs ... notice of their Section 45 proceedings... and the opportunity to participate in the April 4, 2003 hearing. (Second Amended Complaint, p. 22, ¶ 97D). In ¶ 98, Page 22, the Second Amended Complaint states: A" } ]

[ { "docid": "23660569", "title": "", "text": "therefore, Russo had posed as Lostraglio to prevent the company from discovering the policy breach. Armed with the depositions of Lostraglio and Officer Kopp, Cichocki delivered an information complaint to Judge Sawyer of the Walkill Town Court which charged Russo with criminal impersonation, N.Y. Penal Law § 190.25(1) (McKinney 1975). Judge Sawyer issued an arrest warrant on May 7, 1977, and on May 17, 1977, Russo was arrested. On August 23,1978, the charge was dismissed. On March 29, 1979, Russo filed a complaint on behalf of himself and his family. On April 15, 1981, the jury returned a verdict in favor of Russo on his claim of malicious prosecution against Cichocki and the court awarded compensatory and punitive damages and counsel fees. Cichocki appeals from these awards. DISCUSSION We find no merit in Cichocki’s challenges concerning the admission of evidence, the trial court’s demeanor and conduct of the trial, the jury charge and the jury award. Therefore, we dismiss these claims without discussion. In addition, we disagree with his arguments regarding the probable cause element of malicious prosecution. However, because we agree that Russo presented insufficient evidence to prove that the underlying criminal proceeding was terminated in his favor, and that the district court was without discretion to award counsel fees to Russo under 42 U.S.C. § 1988, we vacate the judgment and remand the case for a new trial on the malicious prosecution charge. I. Malicious Prosecution To recover on a claim of malicious prosecution under New York law, a plaintiff must establish four elements: that (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted in actual malice. Martin v. City of Albany, 42 N.Y.2d 13, 16, 364 N.E.2d 1304, 1307, 396 N.Y.S.2d 612, 614 (1977); Broughton v. New York, 37 N.Y.2d 451, 457, 335 N.E.2d 310, 314, 373 N.Y.S.2d 87, 94, cert. denied, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975). On appeal, Cichocki raises challenges" } ]

[ { "docid": "12801688", "title": "", "text": "Meyer, 160 A.D. 752, 146 N.Y.S. 75 (1st Dep’t 1914) (dismissal for failure to prosecute was favorable termination). See generally Restatement (Second) of Torts § 659 (1977) (examples of favorable terminations). No such factual inquiry is required, however, after an acquittal on the merits. “[W]here a criminal proceeding has been terminated in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding ... a foundation in this respect has been laid for an action of malicious prosecution.” Halberstadt v. New York Life Ins. Co., 194 N.Y. 1, 86 N.E. 801, 803-04 (1909); see Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir.1980) (proceedings have terminated favorably “only when their final disposition is such as to indicate the accused is not guilty”), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981). Indeed, courts have held that an acquittal satisfies the favorable termination requirement even when there has been a conviction on a related charge, or one arising from the same incident or event. See Ruff v. Ekerds Drugs, Inc., 265 S.C. 563, 220 S.E.2d 649, 650-51 (1975) (favorable termination established where malicious prosecution plaintiff previously arrested for assault and disorderly conduct “arising] out of the same set of circumstances” was convicted of assault and acquitted of disorderly conduct); Cuth-rell v. Zayre of Va., Inc., 214 Va. 427, 201 S.E.2d 779, 780 (1974) (favorable termination established where malicious prosecution plaintiff, previously arrested for disorderly conduct after dispute over arrest for petit larceny, was convicted of disorderly conduct and acquitted of petit larceny). Here, Janetka was charged with two distinct offenses involving distinct allegations. The disorderly conduct charge involved Janetka’s actions directed at the unidentified hispanic man; the resisting arrest charge involved his actions directed at the officers’ attempts to arrest him. The elements of each charge are different; neither charge is a lesser included offense of the other. To hold that an acquittal does not constitute a favorable termination would be particularly inappropriate in this case, where the charge for which Janetka" }, { "docid": "12801685", "title": "", "text": "arose out of events that occurred on the same occasion. The charges were closely related and arose in connection with two types of behavior that occurred either simultaneously or within minutes of each other.” Id. at 909. The district court earlier had refused to allow Janetka to introduce into evidence portions of a State Investigation Commission Report on official condonation of police misconduct by the Suffolk County Police Department and dismissed the claims against the County. The remaining claims, excessive force and denial of medical treatment, went to the jury, which found for defendant Dabe. DISCUSSION A claim of malicious prosecution brought pursuant to sections 1983 and 1988 is governed by state law in the absence of federal common law. See Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984). Under New York law, a plaintiff alleging malicious prosecution must establish that: (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted in actual malice. Russo v. New York, 672 F.2d 1014, 1018 (2d Cir.1982) (quoting Martin v. City of Albany, 42 N.Y.2d 13, 16, 364 N.E.2d 1304, 1307, 396 N.Y.S.2d 612, 614 (1977)), modified on other grounds, 721 F.2d 410 (2d Cir.1983) (per curiam). The district court dismissed Janetka’s claim of malicious prosecution of the resisting arrest charge, even though Janetka had been acquitted of that offense, on the theory that the proceeding had not terminated in his favor. Judge Wexler reasoned that the acquittal was not a favorable termination, because the charge “arose out of events that occurred on the same occasion” as the disorderly conduct charge that resulted in a conviction. 710 F.Supp. at 909. We disagree. Favorable termination is not so much an element of a malicious prosecution claim as it is a prerequisite to commencement of the action. See Munoz v. City of New York, 18 N.Y.2d 6, 10, 218 N.E.2d 527, 529, 271 N.Y.S.2d 645, 649 (1966) (“It is a kind of" }, { "docid": "12801683", "title": "", "text": "Janetka, who was yelling and pointing his finger at the man. When Dabe told Janetka he might be arrested, Janetka responded with expletives. Dabe arrested Janetka for disorderly conduct. Dabe testified at trial that Janetka began waving his arms, thereby preventing Dabe from applying handcuffs. Troyano and Police Officer Scott Devine, who also had answered the radio call, assisted Dabe. In the ensuing struggle, Jan-etka and the officers fell against the store window. Janetka subsequently was charged with resisting arrest. Janetka testified, in contrast, that he had been accosted by the hispanic man and, due to the stress of the situation, he suffered an asthma attack and had difficulty breathing and speaking. He testified that he waved his arms to gesture to the police officers because he could not speak, and that Dabe struck him in the face several times. Janetka claimed to have suffered bruises and facial swelling. Testimony concerning the car ride to the Fifth Suffolk County Police Precinct in Patchogue also differed. Dabe testified that Janetka spit on him and kicked the car windshield. Jan-etka testified that Dabe punched him in the head several times. Janetka filed a complaint with the Human Rights Commission, resulting in an internal affairs investigation and a reprimand for Dabe for failing to record the names of the hispanic man and his companion. The charges of resisting arrest and disorderly conduct were tried before a jury and Judge Marquette Floyd in the Suffolk County District Court, resulting in a verdict of not guilty on the charge of resisting arrest, and guilty on the charge of disorderly conduct. Evidence of the disposition of both charges was presented to the jury in the case at bar. At the conclusion of plaintiffs case in this action, the district court granted defendants’ motion for a directed verdict dismissing Janetka’s malicious prosecution claim, on the ground that Janetka’s acquittal on the false arrest charge was not a “favorable termination” in light of the fact that he had been convicted of disorderly conduct. Janetka, 710 F.Supp. at 908-09. The court held that “although separate offenses were charged, both" }, { "docid": "6620494", "title": "", "text": "of imprisonment in excess of fifteen days but not more than one year can be imposed. N.Y.Penal L. § 10.00(4). A “violation” is defined as an offense for which the maximum term of imprisonment is fifteen days. N.Y.Penal L. § 10.00(3). The term “crime” is used to describe only misdemeanors and felonies. N.Y.Penal L. § 10.00(6). Under New York Law, resisting arrest is a misdemeanor. See N.Y.Penal L. § 205.30. Disorderly conduct is a violation. N.Y.Penal L. § 240.20. Thus, Janetka was convicted of an offense carrying a maximum term of imprisonment of fifteen days and acquitted of a crime, carrying a maximum term of imprisonment of one year. Although the results of Janetka’s prosecution might be deemed “favorable” to a lay person or to a criminal defense lawyer, such “favorability” does not necessarily amount to a “favorable” determination in the context of a malicious prosecution claim. If such were the case, there is little doubt that a dismissal following an adjournment in contemplation of dismissal would be categorized as a favorable termination. As noted above, however, such dismissals are not deemed to be “favorable” within the context of a malicious prosecution claim. Thus, it becomes clear that instead of focusing exclusively on the practical aspects of the dismissal, the Court must focus on whether the earlier termination implies a lack of reasonable ground to proceed with the prosecution. See Loeb, 432 N.Y.S.2d at 493. If such an implication is found, the prior dismissal will be deemed favorable for the purpose of a subsequent malicious prosecution claim. Applying the principles discussed above, the Court holds that Janetka’s prior criminal proceeding did not result in a favorable determination. First, the Court notes that although separate offenses were charged, both arose out of events that occurred on the same occasion. The charges were closely related and arose in connection with two types of behavior that occurred either simultaneously or within minutes of each other. The offenses were necessarily tried in a single proceeding. See N.Y.Crim.Proc.L. § 40.40(1) (McKinney 1981) (prohibiting separate prosecution of two or more offenses that arise out of a" }, { "docid": "6620491", "title": "", "text": "criminal proceeding terminated in plaintiff’s favor; (3) that there was no probable cause for the criminal proceedings; and (4) that the criminal proceeding was instituted in actual malice. Russo v. State of New York, 672 F.2d 1014, 1019 (2d Cir.1982); see also Conway, 750 F.2d at 214; Martin v. City of Albany, 42 N.Y.2d 13, 396 N.Y.S.2d 612, 614, 364 N.E.2d 1304, 1306-07 (1977). Presently at issue is the. second element referred to above — whether the criminal proceeding forming the basis for Janetka’s malicious prosecution claims can be said to have terminated in his favor. Although research has not revealed the existence of a factually identical situation to the one raised here, certain principles, as discussed below, can be discerned. It is clear, for example, that a proceeding will only be held to have been terminated favorably to the accused where there has been some type of adjudication on the merits. Russo, 672 F.2d at 1019. A termination is deemed to be “on the merits” where the dismissal of the charges implies a lack of reasonable grounds for the prosecution. Loeb v. Teitelbaum, 77 A.D.2d 92, 432 N.Y.S.2d 487, 493 (2d Dep’t 1980), relying on Halberstadt v. New York Life Ins. Co., 194 N.Y. 1, 86 N.E. 801 (1909); accord Russo, 672 F.2d at 1019. Among those terminations held not to constitute favorable terminations are a prosecution resulting in a hung jury, see Singleton v. City of New York, 632 F.2d 185, 195 (2d Cir.1980), the abandonment of a prosecution based upon an agreement or compromise reached with the accused, see Loeb, 432 N.Y.S.2d at 493 and a dismissal following an adjournment in contemplation of dismissal pursuant to Section 170.55 of New York’s Criminal Procedure Law, see Singleton, 632 F.2d at 194; Hollender v. Trump Village Co-op, Inc., 58 N.Y.2d 420, 461 N.Y.S.2d 765, 768, 448 N.E.2d 432, 435 (1983). When the grounds for the prior termination are unclear, the issue of favorable termination is a factual question for the jury. Where, as here, however, the circum- . stances leading to the termination of the prior proceedings are clear," }, { "docid": "22984809", "title": "", "text": "plaintiffs’ claim for malicious prosecution.” 819 F.Supp. at 1162. Yet, when the grounds for the dismissal of a criminal proceeding are unclear, New York courts consider whether the proceeding was terminated in plaintiffs favor to be a question of fact that prevents summary judgment. See Allen v. Town of Colonie, 182 A.D.2d 998, 1000, 583 N.Y.S.2d 24, 26 (3d Dep’t 1992) (stating that plaintiff was not imtially required to come forward with proof that a proceeding was terminated in Ms favor) ; but cf. Witcher v. Children’s Television Workshop, 187 A.D.2d 292, 293-94, 589 N.Y.S.2d 454, 455 (1st Dep’t 1992) (holding that plaintiff failed to state a claim for malicious prosecution when she did not allege proceedings were terminated in her favor and her counsel stated the dismissal of the charges against her did not indicate she was innocent). The parties’ very dispute over the details of the terminated criminal proceedmgs suggests why this element of the malicious prosecution claim cannot be resolved through summary judgment. The factual record is without any specific evidence concerning why the charges brought by defendants against the Rounsevilles were dismissed. At this stage, all the record reveals is that the District Attorney moved for dismissal and that this motion was granted. As this Court ex-plamed in Janetka v. Dabe, 892 F.2d 187 (2d Cir.1989), when “a termination is indecisive because it does not address the merits of the charge, the facts surrounding, the termination must be examined to determine “whether the failure to proceed implies a lack of reasonable grounds for the prosecution.’” Id. at 189 (quoting Conway v. Village of Mount Kisco, 750 F.2d 205, 215 (2d Cir.1984)). Here, the facts surrounding the termination are in dispute, thus precluding a summary judgment dismissal of the malicious prosecution claim based on tMs issue. 3. Lack of Probable Cause. In the context of • a malicious prosecution claim, probable cause under New York law is “the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the' defendant in the manner complained" }, { "docid": "6620490", "title": "", "text": "violation of section 240.20 of the Penal Law. After a single trial held on both charges Jaketka was acquitted on the resisting arrest charge and was convicted on the disorderly conduct charge. According to Janetka, this termination of his criminal charges entitles him to go forward with his malicious prosecution claims. After outlining the elements of a cause of action based on malicious prosecution, the Court will consider whether Janetka may proceed under that theory. II. Discussion A. General Principles At the outset, the Court notes that the elements of a Section 1983 civil rights claim based upon malicious prosecution are identical to the elements required to prove such a claim under New York State law. Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984); see Raysor v. Port Authority, 768 F.2d 34, 39-40 (2d Cir.1985). Under New York law, a plaintiff seeking to recover on a malicious prosecution theory must prove the following four elements: (1) that the defendant either commenced or continued a criminal proceeding against plaintiff; (2) that the criminal proceeding terminated in plaintiff’s favor; (3) that there was no probable cause for the criminal proceedings; and (4) that the criminal proceeding was instituted in actual malice. Russo v. State of New York, 672 F.2d 1014, 1019 (2d Cir.1982); see also Conway, 750 F.2d at 214; Martin v. City of Albany, 42 N.Y.2d 13, 396 N.Y.S.2d 612, 614, 364 N.E.2d 1304, 1306-07 (1977). Presently at issue is the. second element referred to above — whether the criminal proceeding forming the basis for Janetka’s malicious prosecution claims can be said to have terminated in his favor. Although research has not revealed the existence of a factually identical situation to the one raised here, certain principles, as discussed below, can be discerned. It is clear, for example, that a proceeding will only be held to have been terminated favorably to the accused where there has been some type of adjudication on the merits. Russo, 672 F.2d at 1019. A termination is deemed to be “on the merits” where the dismissal of the charges implies a lack" }, { "docid": "22914177", "title": "", "text": "against that officer. C. Malicious Prosecution Posr argues that the district court erred when, in response to a question from the jury during its deliberation, it instructed that if the jury found probable cause supporting any of the three charges of disorderly conduct, resisting arrest and assault lodged against Posr, no liability for malicious prosecution could be found as to any of the charges filed. We agree with Posr and conclude that the malicious prosecution claims must be returned to the district court for retrial. In order to prove either a § 1983 or state law claim of malicious prosecution, plaintiff must establish that: “(1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted with actual malice.” Russo v. New York, 672 F.2d 1014, 1018 (2d Cir.1982) (quoting Martin v. City of Albany, 42 N.Y.2d 13, 16, 396 N.Y.S.2d 612, 614, 364 N.E.2d 1304, 1306 (1977)), modified on other grounds, 721 F.2d 410 (2d Cir.1983), quoted in Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir.1989); see also Broughton v. State, 37 N.Y.2d at 457, 373 N.Y.S.2d at 94, 335 N.E.2d at 318. In Janetka v. Dabe, relied on by Posr, we held that where defendant was charged and convicted of disorderly conduct and charged but acquitted of resisting arrest, and he sued later for malicious prosecution, the unfavorable termination on the disorderly conduct charge did not preclude a finding of liability for maliciously prosecuting the resisting arrest charge. We concluded that the charges arose out of distinct facts and should be analyzed separately. While not precisely on point here, where the issue is whether the officers had probable cause to commence proceedings against Posr, not with whether the charges were terminated in plaintiffs favor, Janet-ka is useful in highlighting the need to separately analyze the charges claimed to have been maliciously prosecuted. When the jury in this case asked whether a probable cause finding as to one of the charges" }, { "docid": "7319130", "title": "", "text": "Viust into falsely testifying against Russell. Second, Russell argues that there was ample evidence in the record to support a jury finding that the charges were terminated in Russell's favor. He contends that this is shown by Viust’s statement recanting his grand jury testimony, by the dismissal of the charges, and by the fact that he has not been reindicted. II. Discussion We review de novo the district court’s decision to grant summary judgment. Vezzetti v. Pellegrini, 22 F.3d 483, 485 (2d Cir.1994). Summary judgment is appropriate where there is no issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). As the district court recognized, a claim of malicious prosecution brought under § 1983 is governed by state law. See Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir.1989). Under New York law, a plaintiff suing for malicious prosecution must establish: (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant’s actions. See Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991). Termination of the criminal charges in plaintiffs favor is an essential element of the claim. See Hollender v. Trump Village Cooperative, Inc., 58 N.Y.2d 420, 448 N.E.2d 432, 435, 461 N.Y.S.2d 765, 768 (1983); Munoz v. City of New York, 18 N.Y.2d 6, 218 N.E.2d 527, 529, 271 N.Y.S.2d 645, 649 (1966); Loeb v. Teitelbaum, 77 A.D.2d 92, 98, 432 N.Y.S.2d 487, 492 (1980), amended, 80 A.D.2d 838, 439 N.Y.S.2d 300 (1981). An acquittal is the most obvious example of a favorable termination. In many instances, however, criminal proceedings are terminated in a manner that does not establish either guilt or innocence. In the absence of a decision on the merits, the plaintiff must show that the final disposition is indicative of innocence. See Singleton v. City of New York, 632 F.2d 185, 193" }, { "docid": "22914178", "title": "", "text": "modified on other grounds, 721 F.2d 410 (2d Cir.1983), quoted in Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir.1989); see also Broughton v. State, 37 N.Y.2d at 457, 373 N.Y.S.2d at 94, 335 N.E.2d at 318. In Janetka v. Dabe, relied on by Posr, we held that where defendant was charged and convicted of disorderly conduct and charged but acquitted of resisting arrest, and he sued later for malicious prosecution, the unfavorable termination on the disorderly conduct charge did not preclude a finding of liability for maliciously prosecuting the resisting arrest charge. We concluded that the charges arose out of distinct facts and should be analyzed separately. While not precisely on point here, where the issue is whether the officers had probable cause to commence proceedings against Posr, not with whether the charges were terminated in plaintiffs favor, Janet-ka is useful in highlighting the need to separately analyze the charges claimed to have been maliciously prosecuted. When the jury in this case asked whether a probable cause finding as to one of the charges would amount to a finding for all three, we can assume that they were willing to find probable cause on one of the charges, but not the other two. The jury could have concluded, based on their verdict against Doherty and Holihan for excessive force, that Doherty had probable cause to charge Posr with disorderly conduct but not with resisting arrest or assault. As disorderly conduct is a lesser charge than resisting arrest and assaulting an officer, analogizing from Janetka, we should not allow a finding of probable cause on this charge to foreclose a malicious prosecution cause of action on charges requiring different, and more culpable, behavior. If the rule were the one followed by the district court, an officer with probable cause as to a lesser offense could tack on more serious, unfounded charges which would support a high bail or a lengthy detention, knowing that the probable cause on the lesser offense would insulate him from liability for malicious prosecution on the other offenses. Accordingly, we find that Posr is entitled to" }, { "docid": "6620489", "title": "", "text": "MEMORANDUM AND ORDER WEXLER, District Judge. Plaintiff Andrew F. Janetka, Jr. (“Plaintiff” or “Janetka”) brings this civil rights action pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the County of Suffolk and one of its police officers. Among the claims set forth in Janetka’s complaint are civil rights and state law claims based upon the alleged malicious prosecution of Janet-ka in a prior criminal proceeding. Presently before the Court is the question of the viability of those claims. For the reasons set forth below, the Court dismisses the claims at issue and holds, accordingly, that such claims may not be presented to the jury. I. Background Janetka’s present complaint stems from his arrest after an alleged altercation with Suffolk County police officers at a local convenience store. The facts developed thus far at trial reveal that after his confrontation with the officers, Janetka was placed in custody and charged with the offenses of: (1) resisting arrest, in violation of section 205.30 of New York’s Penal Law (the “Penal Law”) and (2) disorderly conduct in violation of section 240.20 of the Penal Law. After a single trial held on both charges Jaketka was acquitted on the resisting arrest charge and was convicted on the disorderly conduct charge. According to Janetka, this termination of his criminal charges entitles him to go forward with his malicious prosecution claims. After outlining the elements of a cause of action based on malicious prosecution, the Court will consider whether Janetka may proceed under that theory. II. Discussion A. General Principles At the outset, the Court notes that the elements of a Section 1983 civil rights claim based upon malicious prosecution are identical to the elements required to prove such a claim under New York State law. Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984); see Raysor v. Port Authority, 768 F.2d 34, 39-40 (2d Cir.1985). Under New York law, a plaintiff seeking to recover on a malicious prosecution theory must prove the following four elements: (1) that the defendant either commenced or continued a criminal proceeding against plaintiff; (2) that the" }, { "docid": "12801681", "title": "", "text": "of the lesser offense of disorderly conduct. Janetka v. Dabe, 710 F.Supp. 906, 909 (E.D.N.Y.1989). After ruling that an investigative report concerning Suffolk County’s toleration of police conduct was inadmissible, the court also dismissed all claims against the County. The excessive force and denial of medical treatment claims were tried by a jury, which found for Dabe. On appeal, Janetka asserts that his malicious prosecution claim should have been presented to the jury, because his acquittal was a favorable termination of the underlying charge, despite his conviction of a lesser, related charge. Janetka also contends that the district court erred in excluding the investigative report, and that he was denied a fair trial on his remaining claims because the jury was not allowed to consider his malicious prosecution claim in conjunction with his claim of excessive force. Janetka has not raised any arguments concerning the dismissal of his pendent state law claims against the County. We hold that Janetka’s acquittal of the resisting arrest charge was a favorable termination for purposes of the malicious prosecution claim. We therefore reverse so much of the judgment as dismissed the malicious prosecution claim and remand for further proceedings as to that claim. We also find that the district court properly excluded the investigative report and that Janetka received a fair trial, and therefore affirm the rest of the judgment. BACKGROUND Darrell Dabe, a Suffolk County Police Officer, responded to a radio call at approximately 3:00 a.m. on November 5, 1986, reporting that a fight involving a knife was in progress at a convenience store. When Dabe arrived at the store, Janetka told him that an hispanic man in the store had a knife. Police Officer Edward Troyano, who had arrived at the store at about the same time as Dabe, frisked the man but found no knife. The store clerk, who had reported the fight, told the officers that Janetka had harassed the man and his girlfriend. Troyano went to his car to run warrant checks on both the hispanic man and Janet-ka. Dabe remained on the sidewalk between the hispanic man and" }, { "docid": "6620492", "title": "", "text": "of reasonable grounds for the prosecution. Loeb v. Teitelbaum, 77 A.D.2d 92, 432 N.Y.S.2d 487, 493 (2d Dep’t 1980), relying on Halberstadt v. New York Life Ins. Co., 194 N.Y. 1, 86 N.E. 801 (1909); accord Russo, 672 F.2d at 1019. Among those terminations held not to constitute favorable terminations are a prosecution resulting in a hung jury, see Singleton v. City of New York, 632 F.2d 185, 195 (2d Cir.1980), the abandonment of a prosecution based upon an agreement or compromise reached with the accused, see Loeb, 432 N.Y.S.2d at 493 and a dismissal following an adjournment in contemplation of dismissal pursuant to Section 170.55 of New York’s Criminal Procedure Law, see Singleton, 632 F.2d at 194; Hollender v. Trump Village Co-op, Inc., 58 N.Y.2d 420, 461 N.Y.S.2d 765, 768, 448 N.E.2d 432, 435 (1983). When the grounds for the prior termination are unclear, the issue of favorable termination is a factual question for the jury. Where, as here, however, the circum- . stances leading to the termination of the prior proceedings are clear, the issue becomes a question of law for the Court. See Russo, 672 F.2d at 1020; Loeb, 432 N.Y.S.2d at 491-92. Thus, the Court will turn to discuss whether or not Janetka’s prior criminal proceedings were so favorably terminated as to form part of the basis for a claim of malicious prosecution. B. The Termination of the Criminal Proceeding Brought Against Janet-ka As noted above, Janetka was charged with the commission of two separate offenses — resisting arrest and disorderly conduct. Although he was acquitted of the resisting arrest charge, Janetka was convicted of the disorderly conduct charge. A brief explanation of the statutory scheme pursuant to which plaintiff was charged is in order to explain the gravity of the offenses with which plaintiff was charged. New York law defines any conduct for which a governmental entity may impose a sentence to a term of imprisonment, or a fine, as an “offense.” N.Y.Penal L. § 10.00(1). A misdemeanor is defined as an offense, other than a traffic infraction, for which a sentence to a term" }, { "docid": "22590524", "title": "", "text": "charges as well, when the facts support conviction, rather than exercise leniency, in part to avoid a federal court’s later finding of favorable termination. Hence, the result in this case conforms with the precedent and the purpose of the favorable termination element of malicious prosecution. We acknowledge that caselaw in two other United States Courts of Appeals appears to favor Kossler’s position as a general matter because those courts allowed malicious prosecution claims to proceed despite the plaintiffs’ convictions on some but not all of the charges; however, closer examination reveals the same two-part analysis that we employ here being utilized by these other courts as well. For example, in Janetka v. Dabe, 892 F.2d 187 (2d Cir.1989), the Court of Appeals for the Second Circuit held that a plaintiff whom a jury found not guilty of resisting arrest, but guilty of disorderly conduct, nonetheless could bring a common law malicious prosecution claim. The court reasoned: “Allowing police officers to add unwarranted misdemeanor charges to valid violation charges may force an accused to go to trial on the misdemeanor when he otherwise would plead to the violation. If the dispositive factor is whether, as the district court held, the charge resulting in acquittal ‘arose out of events that occurred on the same occasion’ as a charge resulting in conviction, then police officers could add unsupported serious charges to legitimate minor charges with impunity.” Id. at 190. We are not bound by Janetka and disagree with it insofar as it rejects an analysis that considers whether the charge resulting in acquittal arises out of the same conduct as the charge resulting in conviction. In any event, we do not read Janetka that broadly because “Janetka was charged with two distinct offenses involving distinct allegations. The disorderly conduct charge involved Janetka’s actions directed at [an] unidentified hispanic man; the resisting arrest charge involved his actions directed at the officers’ attempts to arrest him.” Id. So even though the charges in Janetka arose out of events that occurred on the same occasion, they did not arise out of the same criminal conduct, and" }, { "docid": "12801686", "title": "", "text": "proceeding; and (4) that the criminal proceeding was instituted in actual malice. Russo v. New York, 672 F.2d 1014, 1018 (2d Cir.1982) (quoting Martin v. City of Albany, 42 N.Y.2d 13, 16, 364 N.E.2d 1304, 1307, 396 N.Y.S.2d 612, 614 (1977)), modified on other grounds, 721 F.2d 410 (2d Cir.1983) (per curiam). The district court dismissed Janetka’s claim of malicious prosecution of the resisting arrest charge, even though Janetka had been acquitted of that offense, on the theory that the proceeding had not terminated in his favor. Judge Wexler reasoned that the acquittal was not a favorable termination, because the charge “arose out of events that occurred on the same occasion” as the disorderly conduct charge that resulted in a conviction. 710 F.Supp. at 909. We disagree. Favorable termination is not so much an element of a malicious prosecution claim as it is a prerequisite to commencement of the action. See Munoz v. City of New York, 18 N.Y.2d 6, 10, 218 N.E.2d 527, 529, 271 N.Y.S.2d 645, 649 (1966) (“It is a kind of pre-condition to the later action, the sine qua non.... ”); see also W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton On Torts § 119, at 874 (5th ed. 1984). The requirement of favorable termination ensures against inconsistent judgments. Heaney v. Purdy, 29 N.Y.2d 157, 160, 272 N.E.2d 550, 552, 324 N.Y.S.2d 47, 49 (1971). It also permits a finding that probable cause was lacking. Id., 272 N.E.2d at 552, 324 N.Y.S.2d at 49. When a termination is indecisive because it does not address the merits of the charge, the facts surrounding the termination must be examined to determine “whether the failure to proceed implies a lack of reasonable grounds for the prosecution.” Conway, 750 F.2d at 215. Employ ing this analysis, terminations less favorable than an acquittal have been found to be favorable for purposes of a malicious prosecution claim. See, e.g., Keller v. Butler, 246 N.Y. 249, 253-54, 158 N.E. 510 (1927) (favorable termination where Governor refused extradition after arrest in New York State on charges in Florida); Reit v." }, { "docid": "12801680", "title": "", "text": "MINER, Circuit Judge: Plaintiff-appellant Andrew F. Janetka, Jr., appeals from a judgment entered in the United States District Court for the Eastern District of New York (Wexler, /.), on April 28, 1989, dismissing his complaint against defendants-appellees Darrell Dabe and the County of Suffolk. Janetka alleged malicious prosecution of a resisting arrest charge in violation of his constitutional rights, 42 U.S.C. §§ 1983, 1988 (1982), having been acquitted of resisting arrest after a trial which also resulted in his conviction of disorderly conduct. He further alleged that defendant-appellee Darrell Dabe, a Suffolk County Police Officer, used excessive force in arresting him and denied him medical treatment, also in violation of his constitutional rights. Jan-etka also pleaded pendent state law claims for false arrest, assault, battery, negligence and gross negligence against the County under the common-law doctrine of respondeat superior. At the close of Janetka’s case, the district court directed a verdict for defendants on the malicious prosecution claim on the ground that Janetka’s acquittal of resisting arrest was not a “favorable termination,” considering his conviction of the lesser offense of disorderly conduct. Janetka v. Dabe, 710 F.Supp. 906, 909 (E.D.N.Y.1989). After ruling that an investigative report concerning Suffolk County’s toleration of police conduct was inadmissible, the court also dismissed all claims against the County. The excessive force and denial of medical treatment claims were tried by a jury, which found for Dabe. On appeal, Janetka asserts that his malicious prosecution claim should have been presented to the jury, because his acquittal was a favorable termination of the underlying charge, despite his conviction of a lesser, related charge. Janetka also contends that the district court erred in excluding the investigative report, and that he was denied a fair trial on his remaining claims because the jury was not allowed to consider his malicious prosecution claim in conjunction with his claim of excessive force. Janetka has not raised any arguments concerning the dismissal of his pendent state law claims against the County. We hold that Janetka’s acquittal of the resisting arrest charge was a favorable termination for purposes of the malicious prosecution" }, { "docid": "12801684", "title": "", "text": "car windshield. Jan-etka testified that Dabe punched him in the head several times. Janetka filed a complaint with the Human Rights Commission, resulting in an internal affairs investigation and a reprimand for Dabe for failing to record the names of the hispanic man and his companion. The charges of resisting arrest and disorderly conduct were tried before a jury and Judge Marquette Floyd in the Suffolk County District Court, resulting in a verdict of not guilty on the charge of resisting arrest, and guilty on the charge of disorderly conduct. Evidence of the disposition of both charges was presented to the jury in the case at bar. At the conclusion of plaintiffs case in this action, the district court granted defendants’ motion for a directed verdict dismissing Janetka’s malicious prosecution claim, on the ground that Janetka’s acquittal on the false arrest charge was not a “favorable termination” in light of the fact that he had been convicted of disorderly conduct. Janetka, 710 F.Supp. at 908-09. The court held that “although separate offenses were charged, both arose out of events that occurred on the same occasion. The charges were closely related and arose in connection with two types of behavior that occurred either simultaneously or within minutes of each other.” Id. at 909. The district court earlier had refused to allow Janetka to introduce into evidence portions of a State Investigation Commission Report on official condonation of police misconduct by the Suffolk County Police Department and dismissed the claims against the County. The remaining claims, excessive force and denial of medical treatment, went to the jury, which found for defendant Dabe. DISCUSSION A claim of malicious prosecution brought pursuant to sections 1983 and 1988 is governed by state law in the absence of federal common law. See Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984). Under New York law, a plaintiff alleging malicious prosecution must establish that: (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal" }, { "docid": "6620495", "title": "", "text": "above, however, such dismissals are not deemed to be “favorable” within the context of a malicious prosecution claim. Thus, it becomes clear that instead of focusing exclusively on the practical aspects of the dismissal, the Court must focus on whether the earlier termination implies a lack of reasonable ground to proceed with the prosecution. See Loeb, 432 N.Y.S.2d at 493. If such an implication is found, the prior dismissal will be deemed favorable for the purpose of a subsequent malicious prosecution claim. Applying the principles discussed above, the Court holds that Janetka’s prior criminal proceeding did not result in a favorable determination. First, the Court notes that although separate offenses were charged, both arose out of events that occurred on the same occasion. The charges were closely related and arose in connection with two types of behavior that occurred either simultaneously or within minutes of each other. The offenses were necessarily tried in a single proceeding. See N.Y.Crim.Proc.L. § 40.40(1) (McKinney 1981) (prohibiting separate prosecution of two or more offenses that arise out of a single criminal transaction). Thus, only one jury heard all of the evidence detailing the events of the evening in question. Under these circumstances, the Court views the charges brought against Janetka as a single criminal proceeding that was not terminated favorably to the defendant. While the Court is cognizant of the fact that Janetka was acquitted of a crime and convicted only of a violation, the Court is not persuaded, under the circumstances here, that such facts require a finding of a favorable termination for malicious prosecution purposes. While the Court can envision a case where the conviction of a lower level offense and acquittal of a higher level offense might result in a holding that the determination was “favorable,” this is not such a case. Instead, the Court holds that where, as here, the offenses are so closely related to each other and to the defendant’s conduct, an acquittal on the more serious offense does not necessarily require a holding that the termination of the criminal proceeding was favorable for purposes of a subsequent" }, { "docid": "6620493", "title": "", "text": "the issue becomes a question of law for the Court. See Russo, 672 F.2d at 1020; Loeb, 432 N.Y.S.2d at 491-92. Thus, the Court will turn to discuss whether or not Janetka’s prior criminal proceedings were so favorably terminated as to form part of the basis for a claim of malicious prosecution. B. The Termination of the Criminal Proceeding Brought Against Janet-ka As noted above, Janetka was charged with the commission of two separate offenses — resisting arrest and disorderly conduct. Although he was acquitted of the resisting arrest charge, Janetka was convicted of the disorderly conduct charge. A brief explanation of the statutory scheme pursuant to which plaintiff was charged is in order to explain the gravity of the offenses with which plaintiff was charged. New York law defines any conduct for which a governmental entity may impose a sentence to a term of imprisonment, or a fine, as an “offense.” N.Y.Penal L. § 10.00(1). A misdemeanor is defined as an offense, other than a traffic infraction, for which a sentence to a term of imprisonment in excess of fifteen days but not more than one year can be imposed. N.Y.Penal L. § 10.00(4). A “violation” is defined as an offense for which the maximum term of imprisonment is fifteen days. N.Y.Penal L. § 10.00(3). The term “crime” is used to describe only misdemeanors and felonies. N.Y.Penal L. § 10.00(6). Under New York Law, resisting arrest is a misdemeanor. See N.Y.Penal L. § 205.30. Disorderly conduct is a violation. N.Y.Penal L. § 240.20. Thus, Janetka was convicted of an offense carrying a maximum term of imprisonment of fifteen days and acquitted of a crime, carrying a maximum term of imprisonment of one year. Although the results of Janetka’s prosecution might be deemed “favorable” to a lay person or to a criminal defense lawyer, such “favorability” does not necessarily amount to a “favorable” determination in the context of a malicious prosecution claim. If such were the case, there is little doubt that a dismissal following an adjournment in contemplation of dismissal would be categorized as a favorable termination. As noted" }, { "docid": "12801689", "title": "", "text": "arising from the same incident or event. See Ruff v. Ekerds Drugs, Inc., 265 S.C. 563, 220 S.E.2d 649, 650-51 (1975) (favorable termination established where malicious prosecution plaintiff previously arrested for assault and disorderly conduct “arising] out of the same set of circumstances” was convicted of assault and acquitted of disorderly conduct); Cuth-rell v. Zayre of Va., Inc., 214 Va. 427, 201 S.E.2d 779, 780 (1974) (favorable termination established where malicious prosecution plaintiff, previously arrested for disorderly conduct after dispute over arrest for petit larceny, was convicted of disorderly conduct and acquitted of petit larceny). Here, Janetka was charged with two distinct offenses involving distinct allegations. The disorderly conduct charge involved Janetka’s actions directed at the unidentified hispanic man; the resisting arrest charge involved his actions directed at the officers’ attempts to arrest him. The elements of each charge are different; neither charge is a lesser included offense of the other. To hold that an acquittal does not constitute a favorable termination would be particularly inappropriate in this case, where the charge for which Janetka was acquitted was more serious than the one for which he was convicted. Resisting arrest is a “misdemeanor,” see N.Y.Penal Law § 205.30 (McKinney 1988), punishable by a maximum prison sentence of one year, see N.Y. Penal Law § 10.00(4) (McKinney 1987). Disorderly conduct is a “violation,” see N.Y.Penal Law § 240.20 (McKinney 1989), punishable by a maximum prison sentence of 15 days, see N.Y.Penal Law § 10.00(3). Allowing police officers to add unwarranted misdemeanor charges to valid violation charges may force an accused to go to trial on the misdemeanor when he otherwise would plead to the violation. If the disposi-tive factor is whether, as the district court held, the charge resulting in acquittal “arose out of events that occurred on the same occasion” as a charge resulting in conviction, then police officers could add unsupported serious charges to legitimate minor charges with impunity. Accordingly, we reverse the dismissal of the malicious prosecution claim and remand for further proceedings as to that claim in the district court. Janetka’s second assignment of error is that" } ]

[ { "docid": "22866120", "title": "", "text": "treatment shall be given to all persons exposed to chemical agents.” J.A. 590. The fourth factor — any efforts made to temper the severity of a forceful response — thus favors Plaintiffs as well. All told, these factors combine to provide an inference that Lt. Shreve wantonly inflicted pain upon Iko by deploying an excessive amount of pepper spray. As a matter of law, then, the facts viewed in the light most favorable to Plaintiffs support a finding that Lt. Shreve violated Iko’s constitutional right to be free from excessive force. 2. Lt. Shreve can still enjoy qualified immunity from suit if he can show that this constitutional right was not clearly established at the time of Iko’s death. The district court found that the right here was clearly established. We agree. We held over a decade ago that “[i]t is generally recognized that it is a violation of the Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in quantities greater than necessary or for the sole purpose of infliction of pain.” Williams, 77 F.3d at 763 (internal quotations omitted) (emphasis added). Notwithstanding this clear pronouncement, Lt. Shreve attempts to distinguish Williams on the grounds that it involved the use of mace, not pepper spray. Williams’s use of “or other chemical agents,” id, plainly reaches the use of pepper spray, and evinces the principle that “ ‘[c]learly established’ ... includes not only already specifically adjudicated rights, but those manifestly included within more general applications of the core constitutional principle invoked.” Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.1992). Because Lt. Shreve had “ ‘fair warning’ that [his] conduct was unconstitutional,” Ridpath, 447 F.3d at 313, we hold that Iko’s right to be free from excessive use of pepper spray was clearly established, preventing an award of qualified immunity to Lt. Shreve on the facts before us. B. Next, we turn to Plaintiffs’ claim that the officers demonstrated deliberate indifference to Iko’s medical needs when they failed to provide him with medical treatment after he was pepper sprayed. The district court denied the officers" } ]

[ { "docid": "11693744", "title": "", "text": "of punishment grossly disproportionate to the severity of the offense. See id.; Soto v. Dickey, 744 F.2d 1260, 1269 (7th Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 144 (1985). Eighth amendment principles apply not only to judicially imposed punishments, but also when conditions of confinement constitute the punishment at issue. See Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. The limitations imposed by the amendment thus provide the proper framework for evaluating challenges to various schemes of prison discipline. Clearly, “[wjhatever rights one may lose at the prison gates, ... the full protections of the eighth amendment most certainly remain in force.” Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir.1979). The application of the cruel and unusual punishment clause in the context of prison discipline, however, causes the court to balance important concerns on both sides. To be sure, an inmate must be protected from the “unnecessary and wanton infliction of pain” by prison officials. Equally compelling though, is the deference normally extended to prison officials in acting to insure the proper administration, safety and security of a penal institution. The Supreme Court has noted that “a prison’s internal security is peculiarly a matter normally left to the discretion of prison administrators.” Rhodes, 452 U.S. at 349 n. 14, 101 S.Ct. at 2400 n. 14. The Court’s decisions in this area counsel that prison officials “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). Thus, in evaluating the challenged conduct of prison officials, a court must keep in mind the paramount concerns of maintaining order and discipline in an often dangerous and unruly environment. Although this deference “does not insulate from review actions taken in bad faith or for no legitimate purpose, it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice.” Whitley, 475 U.S. at" }, { "docid": "11693754", "title": "", "text": "the recalcitrant prisoner from his cell, it made clear that physical abuse directed at the prisoner after he terminated his resistance to authority would constitute an actionable eighth amendment violation. In accord with the rationale of these cases are the bulk of cases dealing with the use of tear gas or mace on prisoners. In Spain v. Procunier, 600 F.2d 189 (9th Cir.1979), the court concluded that the use of tear gas “in order to prevent a perceived future danger does not violate ‘evolving standards of decency’ or constitute an ‘unnecessary and wanton infliction of pain.’ ” 600 F.2d at 196. Although the court refused to sanction the use of tear gas as punishment, it noted that use of the substance in small amounts may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell or upon other provocation presenting a reasonable possibility that slight force will be required. In these circumstances the substance may be a legitimate means for preventing small disturbances from becoming dangerous to other inmates or the prison personnel. Id. at 195. More recently in Soto v. Dickey, 744 F.2d 1260 (7th Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 144 (1985), the Seventh Circuit approved the use of tear gas or mace where necessary to restore prison order and security. The court first made clear that “it is a violation of the Eighth Amendment for prison officials to use mace or other chemical agents in quantities greater than necessary for the. sole purpose of punishment or the infliction of pain.” 744 F.2d at 1270. The court concluded, however, that the use of “mace, tear gas, or other chemical agent of the like nature when reasonably necessary to prevent prison riots or escape or to subdue recalcitrant prisoners does not constitute cruel and unusual punishment.” Id. The above cases are consistent with our distinction, for purposes of applying the eighth amendment in the context of prison discipline, between punishment after the fact and immediate coercive measures necessary to restore order or security. Prison officials step over" }, { "docid": "15436735", "title": "", "text": "stun guns per se unconstitutional; liability must be determined on the facts of each case. Michenfelder, 860 F.2d at 336. There is no clearly established precedent in the Supreme Court, this court, or in Kentucky holding the use of stun guns improper per se in the prison context. The most analogous case from this circuit is Russo v. City of Cincinnati, 953 F.2d 1036, 1044-45 (6th Cir.1992), where this court analyzed the use of a taser by police officers in an excessive force case. In Russo, we granted qualified immunity to the officers and noted that the use of a taser in order to avoid a dangerous situation or the resort to even greater force did not violate clearly established law. Id. at 1045. Caldwell produces no relevant precedent that clearly establishes a prohibition on the use of a stun gun as a means to subdue an inmate. Moreover, the cases Caldwell does rely upon are from other jurisdictions. As noted, the circumstances in which precedent from other jurisdictions will create clearly establish law in this circuit are very limited. Williams, 936 F.2d at 885. Under Russo, the use of a taser is permissible when resort to even greater force may be necessary. Russo, 953 F.2d at 1045. In this case, it was not unreasonable for the police officers to conclude that the use of the stun gun was necessary to avoid using even greater force against Caldwell. Further, we are aware of a number of cases that support similar uses of force to maintain discipline in the prison context. See, e.g., Michenfelder, 860 F.2d at 334-36 (use of taser does not violate Eighth Amendment); Soto v. Dickey, 744 F.2d 1260 (7th Cir.1984) (use of mace), cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 144 (1985); Spain v. Procunier, 600 F.2d 189, 195 (9th Cir.1979) (use of tear gas); Clemmons v. Greggs, 509 F.2d 1338, 1340 (5th Cir.) (use of tear gas), cert. denied, 423 U.S. 946, 96 S.Ct. 360, 46 L.Ed.2d 280 (1975); Rubins v. Roetker, 737 F.Supp. 1140 (D.Col.1990) (use of stun gun), aff'd, 936 F.2d" }, { "docid": "23709283", "title": "", "text": "products at their jailors. See, e.g., LeMaire v. Maass, 12 F.3d 1444 (9th Cir.1993). Hence, even accepting Williams’ version of the events, the guards’ perception that the inmates were throwing “foul” liquids was reasonable, and they could reasonably perceive such conduct as posing a more significant threat. Analysis of the second and fourth Whitley factors is more complicated. It is generally recognized that “it is a violation of the Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in quantities greater than necessary or for the sole purpose of infliction of pain.” Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 144 (1985). For this reason, we have closely scrutinized the use of tear gas or mace (a trade name for tear gas, Soto, 744 F.2d at 1261) in correctional facilities. See, e.g., Bailey v. Turner, 736 F.2d 963 (4th Cir.1984); Greear v. Loving, 538 F.2d 578 (4th Cir.1976). This is because, even when properly used, such weapons “possess inherently dangerous characteristics capable of causing serious and perhaps irreparable injury to the victim.” Slakan v. Porter, 737 F.2d 366278, 372 (4th Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985). Accordingly, although it is not per se unconstitutional for guards to spray mace at prisoners confined in their cells, it is necessary to examine the “totality of the circumstances, including the provocation, the amount of gas used, and the purposes for which the gas is used [to] determine] the validity of the use of tear gas in the prison environment.” Bailey, 736 F.2d at 969. See also, Justice v. Dennis, 834 F.2d 380, 383 (4th Cir.1987) (en banc), vacated on other grounds, 490 U.S. 1087, 109 S.Ct. 2461, 104 L.Ed.2d 982 (1989). However, mace can be constitutionally used in small quantities to “prevent riots and escapes” or to control a “recalcitrant inmate.” Landman v. Peyton, 370 F.2d 135, 138 & n. 2 (4th Cir.1966), cert. denied, 388 U.S. 920, 87 S.Ct. 2142, 18 L.Ed.2d 1367 (1967). See also Bailey, 736 F.2d" }, { "docid": "6297861", "title": "", "text": "94 S.Ct. 462, 38 L.Ed.2d 324 (1973), for the proposition that prison officials violate due process upon making an unprovoked attack on a prisoner. It is not clear from the Lock opinion what provocation existed in each of the tear gas incidents to justify use of the gas on the pretrial detainee. As the trial court here recognized, Conclusion of Law 18, Johnson requires the court to consider several factors: In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. 481 F.2d at 1033. This court, in Stringer v. Rowe, 616 F.2d 993 (7th Cir. 1980), recently considered under what circumstances use of tear gas or other disabling chemical would be constitutionally impermissible: [U]se of chemical agents such as tear gas and mace by prison officials to subdue individual prisoners, rather than to quell large disturbances, should be more restricted. See, e. g., Spain v. Procunier, 600 F.2d 189, 196 (9th Cir. 1979) . . .; McCargo v. Mister, 462 F.Supp. 813, 819 (D.Md.1978).... 616 F.2d at 919. The court in Spain indicated that the “use of the substance, [tear gas] in small amounts may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell or upon other provocation presenting a reasonable possibility that slight force will be required.” 600 F.2d at 195. The McCargo court ruled that “the use of such agents should be strictly limited to circumstances presenting the utmost degree of danger and loss of control.” 462 F.Supp. at 819. The court concluded that only in rare circumstances would it be appropriate for tear gas to be used to control inmates already confined within their cells. Id. The October 11, 1975 tear gassing of Carpenter and Lock was found to be" }, { "docid": "22866112", "title": "", "text": "(4th Cir.2007). Under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. 2727. A court first determines whether any right was violated, and, if so, whether that right was clearly established. See Miller v. Prince George’s County, Md., 475 F.3d 621, 626-27 (4th Cir.2007). Officials’ actions violate a “clearly established” constitutional right only if, “in the light of preexisting law[,] the unlawfulness” of the actions is apparent. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “We do not require of such officials the legal knowledge culled ‘by the collective hindsight of skilled lawyers and learned judges,’ but instead only ‘the legal knowledge of an objectively reasonable official in similar circumstances at the time of the challenged conduct.’ ” Johnson v. Caudill, 475 F.3d at 650 (quoting Jackson v. Long, 102 F.3d 722, 731 (4th Cir.1996)). “Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992). In the end, the lodestar for whether a right was clearly established is whether the law “gave the officials ‘fair warning’ that their conduct was unconstitutional.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 313 (4th Cir.2006) (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). Here, Plaintiffs argue that the officers violated Iko’s clearly established Eighth Amendment rights to be free from excessive force and to receive adequate medical care, and are thus not entitled to qualified immunity on their § 1983 claims. The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const, amend. VIII. In the prison context, it “protects inmates from inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.1996). An inmate’s Eighth Amendment claim involves a subjective component and an objective component. “Specifically, Eighth Amendment" }, { "docid": "23709282", "title": "", "text": "to rely on this argument when it “determine^] that Defendants’ actions were necessary to protect them and the prisoners from health risks associated with the Plaintiffs conduct.” Williams correctly points out that in considering whether the defendants are entitled to summary judgment, the court cannot accept as true defendants’ version of the facts (the inmates threw “foul-smelling liquids” at the guards) — but must accept as true Williams’ version (the inmates threw water at the guards). See, e.g., Shakka, 71 F.3d at 165. Nevertheless, by Williams’ own account, the inmates threw water at Tomlin and refused to obey the command to desist. Applying the first Whitley factor, the guards’ decision to use some force to quell the disturbance was justifiable. When the guards’ “reasonable perception” of the threat posed by the prisoners is examined (the third factor in the Whitley analysis) it is more evident that some use of force was justified. Tomlin and the other guards perceived that they were targets of foul-smelling liquids. It is certainly not unknown for inmates to throw waste products at their jailors. See, e.g., LeMaire v. Maass, 12 F.3d 1444 (9th Cir.1993). Hence, even accepting Williams’ version of the events, the guards’ perception that the inmates were throwing “foul” liquids was reasonable, and they could reasonably perceive such conduct as posing a more significant threat. Analysis of the second and fourth Whitley factors is more complicated. It is generally recognized that “it is a violation of the Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in quantities greater than necessary or for the sole purpose of infliction of pain.” Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 144 (1985). For this reason, we have closely scrutinized the use of tear gas or mace (a trade name for tear gas, Soto, 744 F.2d at 1261) in correctional facilities. See, e.g., Bailey v. Turner, 736 F.2d 963 (4th Cir.1984); Greear v. Loving, 538 F.2d 578 (4th Cir.1976). This is because, even when properly used, such weapons “possess inherently" }, { "docid": "5941830", "title": "", "text": "1846, 85 L.Ed.2d 144 (1985)). In Soto, the Seventh Circuit held the use of mace, tear gas, or other similar chemical agents, does not constitute cruel and unusual punishment when reasonably necessary to subdue a “recalcitrant prisoner,” even where the prisoner is locked in his cell or in handcuffs. Soto, 744 F.2d at 1270. Indeed, our sister circuits have approved the use of mace in small quantities to control a “recalcitrant inmate.” Id. at 1270-71 (citing cases). See Baldwin v. Stalder, 137 F.3d 836, 841 (5th Cir.1998); Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir.1996) (citing cases); Spain v. Procunier, 600 F.2d 189, 195-96 (9th Cir.1979) (citing cases) (“[U]se of nondangerous quantities ... in order to prevent a perceived future danger does not violate ‘evolving standards of decency’ or constitute an ‘unnecessary and wanton infliction of pain.’ ”). As the Fourth Circuit explained in Williams, “[a] limited application of mace may be much more humane and effective than a flesh to flesh confrontation with an inmate. Moreover, prompt washing of the maced area of the body will usually provide immediate relief from pain.” Williams, 77 F.3d at 763 (citing Soto, 744 F.2d at 1262). We similarly conclude a limited application of capstun to control a recalcitrant inmate constitutes a “tempered response by prison officials” when compared to other forms of force. Id. at 763. See Whitley, 475 U.S. at 321, 106 S.Ct. 1078. Used in such manner and purpose, its application should “rarely be a proper basis for judicial oversight.” Cf. Colon v. Schneider, 899 F.2d 660, 669 (7th Cir.1990). Finally, Shields has failed to establish Jones’ conduct was “malicious or sadistic.” According to Shields’ own testimony, Jones administered capstun after Shields refused a direct order from his supervisor and “questioned” an order from Jones, conduct which formed the basis for two disciplinary violations. Shields was neither handcuffed nor secured in any way during this encounter, and was apparently much larger than Jones. Shields does not argue Jones used capstun in excessive or dangerous quantities, and concedes he was afforded medical treatment within minutes of being sprayed. This record" }, { "docid": "5717586", "title": "", "text": "cert. denied, 423 U.S. 946, 96 S.Ct. 360, 46 L.Ed.2d 280 (1975); Landman v. Peyton, 370 F.2d 135 (4th Cir.1966); Bailey v. Turner, 736 F.2d 963 (4th Cir.1984); Donahue v. Maynard, 437 F.Supp. 47 (D.Kan.1977), and this is so whether the inmate is locked in his prison cell or is in handcuffs, Bailey v. Turner, supra; McCargo v. Mister, 462 F.Supp. 813 (D.Md.1978); Greear v. Loving, 391 F.Supp. 1269 (W.D.Va.1975). The “use of the substance (tear gas) in small amounts may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell or upon other provocation presenting a reasonable possibility that slight force will be required.” Spain v. Procunier, 600 F.2d 189, 195 (9th Cir.1979). Continuing in Spain, the court said: The infliction of pain and the danger of serious bodily harm may be necessary if there is a threat of an equal or greater harm to others, as is reflected in the doctrine of self defense which permits one to do harm to another person who threatens unlawfully to do an equal or greater harm to another. The responsible institutional personnel on the spot are in a better position to determine when its use is necessary than the courts. Clearly, the use of a chemical agent in dangerous quantities is justified only in narrowly defined circumstances but the use of nondangerous quantities of the substance in order to prevent a perceived future danger does not violate “evolving standards of decency” or constitute an “unnecessary and wanton infliction of pain.” We think its use can be justified in situations which are reasonably likely to result in injury to persons or a substantial amount of valuable property. 600 F.2d at 196. Prison officials’ responsibility extends to the protection of the guard, as well as to the inmates. The “safety of the institution’s guards and inmates is perhaps the most fundamental responsibility of the prison administration.” Hewitt v. Helms, 103 S.Ct. at 872. We should therefore be extremely cautious before attempting to prohibit or limit the necessary means by which they may carry out this responsibility-" }, { "docid": "23709284", "title": "", "text": "dangerous characteristics capable of causing serious and perhaps irreparable injury to the victim.” Slakan v. Porter, 737 F.2d 366278, 372 (4th Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985). Accordingly, although it is not per se unconstitutional for guards to spray mace at prisoners confined in their cells, it is necessary to examine the “totality of the circumstances, including the provocation, the amount of gas used, and the purposes for which the gas is used [to] determine] the validity of the use of tear gas in the prison environment.” Bailey, 736 F.2d at 969. See also, Justice v. Dennis, 834 F.2d 380, 383 (4th Cir.1987) (en banc), vacated on other grounds, 490 U.S. 1087, 109 S.Ct. 2461, 104 L.Ed.2d 982 (1989). However, mace can be constitutionally used in small quantities to “prevent riots and escapes” or to control a “recalcitrant inmate.” Landman v. Peyton, 370 F.2d 135, 138 & n. 2 (4th Cir.1966), cert. denied, 388 U.S. 920, 87 S.Ct. 2142, 18 L.Ed.2d 1367 (1967). See also Bailey, 736 F.2d at 968-69. A limited application of mace may be “much more humane and effective than a flesh to flesh confrontation with an inmate.” Soto, 744 F.2d at 1262. Moreover, prompt washing of the maced area of the body will usually provide immediate relief from pain. Id. Furthermore, because a limited use of mace constitutes a relatively “mild” response compared to other forms of force, the initial application of mace indicates a “tempered” response by the prison officials. Thus, on balance, analysis of the second and fourth Whitley factors also leads us to conclude that the district court did not err in deciding, as a matter of law, that the initial application of mace did not constitute cruel and unusual punishment. B. Ten minutes after the macing, officers placed Williams in four-point restraints. In our civilized society, we would like to believe that chaining a human being to a metal bed frame in a spread-eagled position would never be necessary. Unfortunately, it sometimes is. Courts have thus approved the limited use of four-point restraints, as a" }, { "docid": "11693753", "title": "", "text": "Williams v. Kelley, the court stated that the “application of force by jail officials to protect themselves, and to maintain and restore discipline is appropriate if the application of force is reasonable and made in good faith____ Additionally, prison officials may use reasonable force to move inmates and to ensure compliance with reasonable regulations.” Smith, 591 F.Supp. at 1168. The Smith court cautioned, however, that “when the necessity for the application of force by jail officials ceases, the continued use of harmful force can be a violation of the Eighth and Fourteenth Amendments.” 591 F.Supp. at 1168. The use of force in retaliation for a provocative act by an inmate occurring some time earlier is “more likely to be not an effort to restore order but instead either a motive for ‘maliciously’ striking the [inmate] ‘for the purpose of causing harm' or else summary, informal, unofficial and unsanctioned corporal punishment.” Id. (quoting Dailey v. Byrnes, 605 F.2d 858, 861 (5th Cir.1979)). Thus, although the court in Smith approved the use of reasonable force to remove the recalcitrant prisoner from his cell, it made clear that physical abuse directed at the prisoner after he terminated his resistance to authority would constitute an actionable eighth amendment violation. In accord with the rationale of these cases are the bulk of cases dealing with the use of tear gas or mace on prisoners. In Spain v. Procunier, 600 F.2d 189 (9th Cir.1979), the court concluded that the use of tear gas “in order to prevent a perceived future danger does not violate ‘evolving standards of decency’ or constitute an ‘unnecessary and wanton infliction of pain.’ ” 600 F.2d at 196. Although the court refused to sanction the use of tear gas as punishment, it noted that use of the substance in small amounts may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell or upon other provocation presenting a reasonable possibility that slight force will be required. In these circumstances the substance may be a legitimate means for preventing small disturbances from becoming dangerous to other" }, { "docid": "11693755", "title": "", "text": "inmates or the prison personnel. Id. at 195. More recently in Soto v. Dickey, 744 F.2d 1260 (7th Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 144 (1985), the Seventh Circuit approved the use of tear gas or mace where necessary to restore prison order and security. The court first made clear that “it is a violation of the Eighth Amendment for prison officials to use mace or other chemical agents in quantities greater than necessary for the. sole purpose of punishment or the infliction of pain.” 744 F.2d at 1270. The court concluded, however, that the use of “mace, tear gas, or other chemical agent of the like nature when reasonably necessary to prevent prison riots or escape or to subdue recalcitrant prisoners does not constitute cruel and unusual punishment.” Id. The above cases are consistent with our distinction, for purposes of applying the eighth amendment in the context of prison discipline, between punishment after the fact and immediate coercive measures necessary to restore order or security. Prison officials step over the line of constitutionally permissible conduct if they use more force than is reasonably necessary in an existing situation or if they summarily and maliciously inflict harm in retaliation for past conduct. Prison officers must, however, have the authority to use that amount of force or those coercive measures reasonably necessary to enforce an inmate’s compliance with valid prison rules and to protect themselves and the other inmates. Thus, where such immediate coercive action is necessary, the conduct of a prison official does not constitute cruel and unusual punishment within the meaning of the eighth amendment if it was undertaken not maliciously or sadistically, but in a good faith effort to restore order or prevent a disturbance, and if the force used was reasonable in relation to the threat of harm or disorder apparent at the time. 2. Applying the standard set forth above, we hold that the denial of water to appellant Ort did not constitute cruel and unusual punishment within the meaning of the eighth amendment. This claim thus does not rise to" }, { "docid": "3325781", "title": "", "text": "an officer who was present when the incident occurred. These documents do not deny that plaintiff was maced. Rather, they claim that it was necessary to subdue Stringer with the chemical agent because he refused to give up the security belt and handcuffs which he was wearing. According to the affidavits, Stringer also threatened the five officers who were present at his cell. The district court granted summary judgment to defendants on the basis of Stringer’s failure to present material contradicting defendants’ showing that force was necessary to subdue him. In order to establish a violation of the Eighth Amendment, a plaintiff must show that prison officials intentionally inflicted excessive or grossly severe punishment on him or that the officials knowingly maintained conditions so harsh as to shock the general conscience. United States ex rel. Miller v. Twomey, 479 F.2d 701, 719-20 (7th Cir. 1973), cert. denied, Gutierrez v. Dept. of Public Safety, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974). Courts have sanctioned the use of tear gas “when reasonably necessary ... to subdue recalcitrant prisoners.” Clemmons v. Greggs, 509 F.2d 1338, 1340 (5th Cir. 1975). Recent decisions, however, have emphasized that use of chemical agents such as tear gas and mace by prison officials to subdue individual prisoners, rather than to quell large disturbances, should be more restricted. See, e. g., Spain v. Procunier, 600 F.2d 189, 196 (9th Cir. 1979) (“use of potentially dangerous quantities of the substance is justified only under narrowly defined circumstances . . . McCargo v. Mister, 462 F.Supp. 813, 819 (D.Md.1978) (“use of [tear gas and mace] should be strictly limited to circumstances presenting the utmost degree of danger and loss of control”). The essential question on appeal is whether Stringer’s claim that the use of mace constituted cruel and unusual punishment was ripe for summary judgment. In Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973), the court remarked: In determining whether the constitutional line has been crossed, a court must look to such factors as the need" }, { "docid": "15436737", "title": "", "text": "583 (10th Cir.1991); Blair-El v. Tinsman, 666 F.Supp. 1218 (S.D.Ill.1987) (use of chemical spray). Given the number of cases which have upheld the use of stun guns or chemical agents against recalcitrant prisoners, we cannot say that it was clearly established that the use of a stun gun against Caldwell was a per se violation of the Eighth Amendment. Indeed, as the Seventh Circuit noted “[t]he Supreme Court has never held, nor have we or any other court of appeals, so far as we can determine, that the use of tear gas or a chemical agent is a per se violation of the Eighth Amendment, whether an inmate is locked in his cell or not.” Soto, 744 F.2d at 1270. This observation also holds true for the use of stun guns. Our conclusion that the defendants’ use of a stun gun against Caldwell was not a per se violation of the Eighth Amendment does not immunize all use of such devices against inmates. See Michenfelder, 860 F.2d at 336 (taser may not be used for the sole purpose of punishment or the infliction of pain); Soto, 744 F.2d at 1270 (use of chemical agents must be evaluated under all the circumstances). Rather, the inquiry in each case must be “whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, - U.S. at -, 112 S.Ct. at 999, 117 L.Ed.2d at 166. When police officers act with the malicious intent to cause harm, they violate the Eighth Amendment. In making this determination, we are to be guided by “factors [such] as the need for application of force, the relationship between the need and the amount of force that was used [and] the extent of injury inflicted.” Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1084-85. Applying these principles to the facts of this case, the district court found that the stun gun and straitjacket were employed in a good-faith effort to restore discipline and order in the jail and not for the sole purpose of causing the plaintiff harm." }, { "docid": "5717585", "title": "", "text": "a chemical agent is a per se violation of the Eighth Amendment, whether an inmate is locked in his cell or not. What we, and other courts have held, is that the appropriateness of the use must be determined by the facts and circumstances of the case. We have held, and now restate that it is a violation of the Eighth Amendment for prison officials to use mace or other chemical agents in quantities greater than necessary or for the sole purpose of punishment or the infliction of pain. Thus, we adhere to what we said in Stringer v. Rowe, 616 F.2d at 998, set out above. The use of mace, tear gas or other chemical agent of the like nature when reasonably necessary to prevent riots or escape or to subdue recalcitrant prisoners does not constitute cruel and inhuman punishment. Lock v. Jenkins, supra; Poindexter v. Woodson, 510 F.2d 464, 466 (10th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 85, 46 L.Ed.2d 68 (1975); Clemmons v. Greggs, 509 F.2d 1338, 1340 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 360, 46 L.Ed.2d 280 (1975); Landman v. Peyton, 370 F.2d 135 (4th Cir.1966); Bailey v. Turner, 736 F.2d 963 (4th Cir.1984); Donahue v. Maynard, 437 F.Supp. 47 (D.Kan.1977), and this is so whether the inmate is locked in his prison cell or is in handcuffs, Bailey v. Turner, supra; McCargo v. Mister, 462 F.Supp. 813 (D.Md.1978); Greear v. Loving, 391 F.Supp. 1269 (W.D.Va.1975). The “use of the substance (tear gas) in small amounts may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell or upon other provocation presenting a reasonable possibility that slight force will be required.” Spain v. Procunier, 600 F.2d 189, 195 (9th Cir.1979). Continuing in Spain, the court said: The infliction of pain and the danger of serious bodily harm may be necessary if there is a threat of an equal or greater harm to others, as is reflected in the doctrine of self defense which permits one to do harm to another person who threatens unlawfully" }, { "docid": "23384228", "title": "", "text": "the need to control an inmate who has failed to obey a jailer’s orders.”); Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.1984) (“The Supreme Court has never held, nor have we or any other court of appeals, so far as we can determine, that the use of tear gas or a chemical agent is a per se violation of the Eighth Amendment .... ”); Spain v. Procunier, 600 F.2d 189, 196 (9th Cir.1979) (“use of nondangerous quantities of [tear gas] in order to prevent a perceived future danger does not violate ‘evolving standards of decency’ or constitute an ‘unnecessary and wanton infliction of pain’ ”), there are constitutional boundaries to its use. See Gates v. Collier, 501 F.2d 1291, 1304 (5th Cir.1974) (“[T]here is a line where solitary confinement conditions become so severe that its use is converted from a viable prisoner disciplinary tool to cruel and unusual punishment.”). The district court did not categorically condemn the DOC’s non-spontaneous use-of-force policy. Rather, the court found that McKinney’s well-documented history of mental illness and psychotic episodes rendered him unable to comply at the times he was sprayed such that the policy was “unnecessary” and “without penological justification” in his specific case. This conclusion is in keeping with prior decisions of this court and other circuit courts of appeals, which have concluded that where chemical agents are used unnecessarily, without penological justification, or for the very purpose of punishment or harm, that use satisfies the Eighth Amendment’s objective harm requirement. See Danley, 540 F.3d at 1311 (holding that prolonged exposure to pepper spray due to a failure to properly decontaminate an inmate may form the basis of an Eighth Amendment claim); Iko v. Shreve, 535 F.3d 225, 239 (4th Cir.2008) (use of additional bursts of pepper spray after inmate attempted to comply with officer’s orders and which possibly contributed to inmate’s asphyxiation and death sufficiently alleged objective component of excessive force claim); Soto, 744 F.2d at 1270 (“[I]t is a violation of the Eighth Amendment for prison officials to use mace or other chemical agents in quantities greater than necessary or" }, { "docid": "11693743", "title": "", "text": "issue becomes whether it is “cruel and unusual punishment” for a prison guard to deny water to a single inmate who, at that time, is refusing to perform his share of the work required of his squad. In deciding this question, we first address the general parameters of the prohibition against cruel and unusual punishment. 1. The language of the eighth amendment, that “cruel and unusual punishments [shall not be] inflicted,” manifests the general intention to limit the power of those entrusted with the criminal-law function of government. Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986). The amendment today is recognized as proscribing more than simply physically barbarous punishments. See Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). It prohibits the unnecessary and wanton infliction of pain, or the infliction of pain totally without penological justification. See Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (1981). The amendment has also been found to proscribe the infliction of punishment grossly disproportionate to the severity of the offense. See id.; Soto v. Dickey, 744 F.2d 1260, 1269 (7th Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 144 (1985). Eighth amendment principles apply not only to judicially imposed punishments, but also when conditions of confinement constitute the punishment at issue. See Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. The limitations imposed by the amendment thus provide the proper framework for evaluating challenges to various schemes of prison discipline. Clearly, “[wjhatever rights one may lose at the prison gates, ... the full protections of the eighth amendment most certainly remain in force.” Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir.1979). The application of the cruel and unusual punishment clause in the context of prison discipline, however, causes the court to balance important concerns on both sides. To be sure, an inmate must be protected from the “unnecessary and wanton infliction of pain” by prison officials. Equally compelling though, is the deference normally extended to prison officials in acting to" }, { "docid": "15436736", "title": "", "text": "this circuit are very limited. Williams, 936 F.2d at 885. Under Russo, the use of a taser is permissible when resort to even greater force may be necessary. Russo, 953 F.2d at 1045. In this case, it was not unreasonable for the police officers to conclude that the use of the stun gun was necessary to avoid using even greater force against Caldwell. Further, we are aware of a number of cases that support similar uses of force to maintain discipline in the prison context. See, e.g., Michenfelder, 860 F.2d at 334-36 (use of taser does not violate Eighth Amendment); Soto v. Dickey, 744 F.2d 1260 (7th Cir.1984) (use of mace), cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 144 (1985); Spain v. Procunier, 600 F.2d 189, 195 (9th Cir.1979) (use of tear gas); Clemmons v. Greggs, 509 F.2d 1338, 1340 (5th Cir.) (use of tear gas), cert. denied, 423 U.S. 946, 96 S.Ct. 360, 46 L.Ed.2d 280 (1975); Rubins v. Roetker, 737 F.Supp. 1140 (D.Col.1990) (use of stun gun), aff'd, 936 F.2d 583 (10th Cir.1991); Blair-El v. Tinsman, 666 F.Supp. 1218 (S.D.Ill.1987) (use of chemical spray). Given the number of cases which have upheld the use of stun guns or chemical agents against recalcitrant prisoners, we cannot say that it was clearly established that the use of a stun gun against Caldwell was a per se violation of the Eighth Amendment. Indeed, as the Seventh Circuit noted “[t]he Supreme Court has never held, nor have we or any other court of appeals, so far as we can determine, that the use of tear gas or a chemical agent is a per se violation of the Eighth Amendment, whether an inmate is locked in his cell or not.” Soto, 744 F.2d at 1270. This observation also holds true for the use of stun guns. Our conclusion that the defendants’ use of a stun gun against Caldwell was not a per se violation of the Eighth Amendment does not immunize all use of such devices against inmates. See Michenfelder, 860 F.2d at 336 (taser may not be used for" }, { "docid": "5941829", "title": "", "text": "physical injury. In Hickey, however, we reached the foregoing conclusion in part due to the defendant’s admission that “a stun gun inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless.” Id. This stands in sharp con trast to the undisputed testimony in this case regarding the effects of capstun. Moreover, the inmate in Hickey complained of continuing discomfort from the stun gun. Id. at 757 n. 5. Shields makes no such claim, nor produces any evidence he suffered to the extent or duration we found objectionable in Hickey. Nor do we find the type of force used in this case “repugnant to the conscience of mankind.” In Hickey, we recognized “summary applications of force are constitutionally permissible when prison security and order, or the safety of other inmates or officers, has been placed in jeopardy,” and we cited Soto v. Dickey in support of this proposition. Id. at 759 (citing Soto v. Dickey, 744 F.2d 1260 (7th Cir.1984), cert. denied 470 U.S. 1085, 105 5.Ct. 1846, 85 L.Ed.2d 144 (1985)). In Soto, the Seventh Circuit held the use of mace, tear gas, or other similar chemical agents, does not constitute cruel and unusual punishment when reasonably necessary to subdue a “recalcitrant prisoner,” even where the prisoner is locked in his cell or in handcuffs. Soto, 744 F.2d at 1270. Indeed, our sister circuits have approved the use of mace in small quantities to control a “recalcitrant inmate.” Id. at 1270-71 (citing cases). See Baldwin v. Stalder, 137 F.3d 836, 841 (5th Cir.1998); Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir.1996) (citing cases); Spain v. Procunier, 600 F.2d 189, 195-96 (9th Cir.1979) (citing cases) (“[U]se of nondangerous quantities ... in order to prevent a perceived future danger does not violate ‘evolving standards of decency’ or constitute an ‘unnecessary and wanton infliction of pain.’ ”). As the Fourth Circuit explained in Williams, “[a] limited application of mace may be much more humane and effective than a flesh to flesh confrontation with an inmate. Moreover, prompt washing of the maced area of" }, { "docid": "23384227", "title": "", "text": "these sprayings — such as the incompetency findings for purposes of disciplinary proceedings related to various use-of-force incidents contained in Thomas’s record, see id. at *12 — his record as a whole supports the district court’s factual findings. In sum, we conclude that the district court did not clearly err in finding that McKinney was sprayed with chemical agents at times when he had no capacity to comply with officers’ orders because of his mental illness. See id. at *27. Nor did the district court clearly err in finding that these sprayings caused him “lasting psychological injuries.” Id. In light of these factual findings, we also readily conclude that the DOC’s repeated non-spontaneous use of chemical agents on McKinney constituted an extreme deprivation sufficient to satisfy the objective prong. Although it is well-established that the use of chemical agents on recalcitrant prisoners is not per se unconstitutional, Danley, 540 F.3d at 1307 (“Pepper spray is an accepted non-lethal means of controlling unruly inmates[,] ... [and a] short burst of pepper spray is not disproportionate to the need to control an inmate who has failed to obey a jailer’s orders.”); Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.1984) (“The Supreme Court has never held, nor have we or any other court of appeals, so far as we can determine, that the use of tear gas or a chemical agent is a per se violation of the Eighth Amendment .... ”); Spain v. Procunier, 600 F.2d 189, 196 (9th Cir.1979) (“use of nondangerous quantities of [tear gas] in order to prevent a perceived future danger does not violate ‘evolving standards of decency’ or constitute an ‘unnecessary and wanton infliction of pain’ ”), there are constitutional boundaries to its use. See Gates v. Collier, 501 F.2d 1291, 1304 (5th Cir.1974) (“[T]here is a line where solitary confinement conditions become so severe that its use is converted from a viable prisoner disciplinary tool to cruel and unusual punishment.”). The district court did not categorically condemn the DOC’s non-spontaneous use-of-force policy. Rather, the court found that McKinney’s well-documented history of mental illness and psychotic" } ]

[ { "docid": "23205645", "title": "", "text": "participants. Under this section, plans qualify merely by agreeing not to divert funds prior to the satisfaction of the plan’s liabilities. The regulations under the Internal Revenue Code make it apparent that the employer can recover after termination residual assets that result from actuarial error. An employer is foreclosed only from recovering surpluses which arise from prohibited amendments, such as changes in benefit provisions or eligibility require ments. 26 C.F.R. § l-401-2(b). The plan, therefore, did not explicitly reserve a right to recover residual assets since, under IRS Rules, none should have been intentionally created. Under various provisions of the plan, such as Section VIII, it was clear that the participants’ benefits were specifically limited to those defined and did not include any right to share in a surplus. The provisions dealing with termination specified that accrued benefits would be paid to participants subject to reduction only in the event of underfunding and with no reference to increase in the event of overfunding. Section XIII dealt separately with amendments to the plan and with termination of the plan. The first sentence, dealing with amendments, clearly precluded changes in the plan that would reduce benefits or alter anti-diversion provisions of other sections of the plan and trust. Since ERISA appeared to require an affirmative statement providing for distribution of residual assets, defendants amended the provision quoted above by adding to the first sentence of Section XIII after the word “trust” the phrase “at any time prior to the satisfaction of all liabilities with respect to the Participants and their Beneficiaries.” Then, in a paragraph dealing with termination of the plan, there was added, after a description of the priorities of distribution, a sentence stating that “any residual assets shall be distributed to the Employer.” Defendants then, on April 5, 1977, submitted the plan to the PBGC. They did not describe the manner in which the excessive funding had arisen or highlight the fact that the amendment allowing recapture was recent. The PBGC thereafter issued an informal opinion letter approving, on the basis of the information supplied, the recapture of the surplus" } ]

[ { "docid": "5783359", "title": "", "text": "and if the plan permits the recapture of surplus assets. 29 U.S.C. § 1344(d)(1). See also Blessitt v. Retirement Plan for Employees of Dixie Engine Co., 848 F.2d 1164, 1170 (11th Cir.1988); Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., 555 F.Supp. 257, 261 (D.D.C.1983), aff’d, 729 F.2d 863 (D.C.Cir.1984); In re C.D. Moyer Co. Trust Fund, 441 F.Supp. 1128, 1132 (E.D.Pa.1977), aff’d, 582 F.2d 1275 (3d Cir.1978) (plan included language necessary to reserve the employer’s right to the remaining trust assets). Section 1344 ensures employers will “not be penalized for overfunding ‘in an abundance of caution’ or as a result of a miscalculation on the part of an actuary. Accordingly, employees will continue to be protected to the extent of their specific benefits but will not receive any windfalls due to the employer’s mistake in predicting the amount necessary to keep the Plan on a sound financial basis.” In re C.D. Moyer Co. Trust Fund, 441 F.Supp. at 1132-33. See also Chait v. Bernstein, 835 F.2d 1017, 1027 (3rd Cir.1987); Wright, 641 F.Supp. at 1406-07. Title II of ERISA allows reversion of surplus assets to the employer upon termination of a plan without loss to the plan of its tax exempt status. See 26 U.S.C. § 401(a)(2). Treasury Regulation § 1.401-2(b)(1) defines “surplus” as “any balance remaining in the trust which is due to erroneous actuarial computations,” i.e., “arising because actual requirements differ from the expected requirements.... ” 26 C.F.R. § 1.401-2(b)(1). Title II of ERISA requires the vesting of all accrued benefits upon termination of a plan, not withstanding the vesting provisions contained by the plan, in order for the plan to retain tax-exempt status. 26 U.S.C. § 411(d)(3). In addition, the Treasury, the PBGC and the Department of Labor issued on 23 May 1984 joint administrative guidelines (the “Joint Guidelines”). The Joint Guidelines require employers to vest benefits of plan participants prior to terminating and spinning off a plan and prior to recapturing surplus assets. The Joint Guidelines require employers to cover accrued benefits prior to such spin-off and termination with annuity contracts. PBGC News Release" }, { "docid": "12121067", "title": "", "text": "an ‘erroneous actuarial computation’ is the surplus arising because actual requirements differ from the expected requirements.... For example, a trust has accumulated assets of $1,000,000 at the time of liquidation, determined by acceptable actuarial procedures ... as being necessary to provide the benefits in accordance with the provisions of the plan. Upon such liquidation it is found that $950,000 will satisfy all of the liabilities under the plan. The surplus of $50,000 arises, therefore, because of the difference between the amounts actuarially determined and the amounts actually required to satisfy the liabilities. This $50,000, therefore, is the amount which may be returned to the employer as the result of an erroneous actuarial error. 26 C.F.R. § 1.401-2(b)(l) (emphasis supplied). From the example given in the regulation, it is clear that any plan assets remaining after the satisfaction of all liabilities under the plan are defined to be the result of actuarial error and therefore a reversion of these assets to the employer does not violate the exclusive benefit rule. The plan’s reversion provision mirrors the regulatory interpretation of § 401(a)(2). Paragraph 11 of Article XI, as amended, states that any assets remaining after the plan’s liabilities are met “shall ... be deemed to have become available as a result of actuarial error and shall be distributed to the Employer in cash.” Treasury Regulation § 1.401-2(b)(2) requires that the plan’s fixed and contingent liabilities to employees both must be satisfied before any reversion can occur. Fixed liabilities are benefits that are vested when the plan terminates; contingent liabilities are benefits that are accrued but not yet vested when the plan terminates. These definitions have been consistently applied by the Internal Revenue Service and Treasury for more than thirty-five years. For example, in Revenue Ruling 85-6, 1985-1 C.B. 133, the Internal Revenue Service explained that “section 1.401-2(b)(2) provides that the liabilities that must be satisfied include both fixed (those nonforfeitable pri- or to termination) and contingent (those not nonforfeitable prior to termination) liabilities. After satisfaction of those liabilities, an employer may recover any remaining funds from the plan as surplus resulting from" }, { "docid": "2596927", "title": "", "text": "§ 502(e), 29 U.S.C. § 1132(e) provides that \"[ejxcept for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions ... brought by the Secretary, or by a participant, beneficiary or fiduciary.” In Pressroom Unions-Printers League Income Security Fund v. Continental Assurance Co., a case involving jurisdiction under ERISA § 502(d)(1), 29 U.S.C. § 1132(d)(1), the court stated: [w]e focus not on whether the legislative history reveals that Congress intended to prevent actions by employers or other parties, but instead on whether there is any indication that the legislature intended to grant subject matter jurisdiction over suits by employers, funds, or other parties not listed in section 1132(e)(1). 700 F.2d 889, 892 (2d Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 148, 78 L.Ed.2d 138 (1983). Plaintiff District 65 argues that Pressman left open the question of establishing jurisdiction under 28 U.S.C. § 1331, see 700 F.2d at 892 n. 7, and that in the event that ERISA did not provide subject matter jurisdiction to the court over District 65’s ERISA claims, 28 U.S.C. § 1331 would. It is unnecessary to address jurisdiction under 28 U.S.C. § 1331 in light of the fact that District 65 has already been dismissed as a plaintiff on the basis of lack of standing. . The District Court for the District of Columbia stated in Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., that \"[i]n addition to section 4044(d)(1), the common law of trusts provides that an employer can retain such surplus____ These provisions are clearly intended to insure that while an employer is obligated to provide defined benefits to plan participants, the participants should not be able to claim a windfall stemming from the employer’s accidental overfunding of a defined benefit plan.” 555 F.Supp. at 560. Excess assets that result from “erroneous actuarial computation\" arise when the plan’s \"actual requirements differ from the expected requirements even though the latter were based upon previous actuarial valuations of liabilities or determinations of costs of providing pension benefits under the plan and were made" }, { "docid": "6142113", "title": "", "text": "Co., 555 F.Supp. 257, 260 (D.D.C.1983), aff'd mem., 729 F.2d 863 (D.C.Cir.1984) (“the common law of trusts provides that an employer can retain such a surplus”). Plaintiffs claim that the language of the A & B Plan did not contain an explicit reversion provision as they assert is required by section 4044(d)(1), 29 U.S.C. § 1344(d)(1). They rely on Albedyll v. Wisconsin Porcelain Co. Revised Retirement Plan, 947 F.2d 246, 256 (7th Cir.1991) (“unless the plan specifically provides for reversion to the employer, surplus assets go to beneficiaries and participants”). However, we note that section 4044(d)(1) merely requires that a plan “provide[ ]” for distribution of surplus assets to an employer, it does not say that the provision must be specific, explicit or express. In any event, Albedyll is a total termination case, and section 4044(d)(1) does not address a partial termination. Internal Revenue Code section 401(a)(2) allows employer reversion only on complete termination. 26 U.S.C. § 401(a)(2) (only after satisfaction of all liabilities). See also 26 C.F.R. § 1.401-2(b)(l). Internal Revenue Code section 411(d)(3) requires that a plan, in order to be qualified, provide that “upon its termination or partial termination ... the rights of all affected employees to benefits accrued to the date of such termination, [or] partial termination ... to the extent funded as of such date, or the amounts credited to the employees’ accounts, are nonforfeitable.” As previously noted, all participants in the A & B Plan who were terminated from Gulf during the March 1984-July 1986 period, and all former Gulf employees employed by Chevron on July 1, 1986, have been fully vested in their accrued A & B Plan benefits. Nothing in ERISA or the Internal Revenue Code mandates a distribution of any surplus assets on a partial termination or requires any particular provision in a plan in order to avoid such a result. See, e.g., Chait v. Bernstein, 835 F.2d 1017, 1021 (3d Cir.1987) (in a partial termination § 411(d)(3) “should not be extended to apply to surplus assets ... in a defined benefit plan”); Van Orman v. American Insurance Co., 680 F.2d" }, { "docid": "6142126", "title": "", "text": "assets because Gulfs contributions to the plan were to be used for the “exclusive benefit” of the plan participants and their beneficiaries. Their argument fails to recognize, however, that the “exclusive benefit” requirements of tax law and ERISA are counterbalanced by provisions allowing employer recapture of surplus assets. Both tax law and ERISA require the funds of a pension plan be used “for the exclusive benefit of’ the plan participants. 26 U.S.C. § 401(a)(2); 29 U.S.C. § 1103(c)(1) (“for the exclusive purposes of providing benefits ... and defraying ... expenses”). Plaintiffs ignore the fact that both ERISA and the Internal Revenue Code also contemplate employer reversion. The ERISA “exclusive benefit” provision is expressly made subject to the exception that when the plan finally terminates, surplus assets may revert to the employer if three conditions are then met, including that the plan provide for such a distribution. 29 U.S.C. § 1344(d)(1). The “exclusive benefit” provision of Section 165 of the 1939 Revenue Code, quoted above, the law in effect in 1944 when the A & B Plan was established, provided that a plan would be tax exempt if under the trust instrument it is impossible, at any time prior to the satisfaction of all liabilities with respect to employees and their beneficiaries under the trust, for any part of the corpus or income to be used for purposes other than for the exclusive benefit of the participants or their beneficiaries. Internal Revenue Code, 53 Stat. § 165(2) (1939). The Treasury Regulations originally promulgated for section 165(a), which continue in effect without presently relevant substantive change, make clear that, notwithstanding the “exclusive benefit” phrase, the “prior to” language of that section permits the employer to recover surplus assets upon termination of the plan if those assets stem from actuarial error. See notes' 19 & 22, supra. Because both the Tax Code and ERISA require exclusive benefit language and contemplate that an employer may recover surplus assets after all plan liabilities are satisfied, the mere existence of the exclusive benefit provision in the A & B Plan cannot prohibit reversion to an employer." }, { "docid": "14334377", "title": "", "text": "as long as the reversion does not violate ERISA and is not prohibited by the plan’s language. Wright v. Nimmons, 641 F.Supp. 1391, 1406 (S.D.Tex.1986); Washington-Baltimore Newspaper Guild, 555 F.Supp. at 259. Section 403(c)(1) of ERISA, 29 U.S.C. § 1103(c)(1), sets forth the general rule regarding the use and purpose of pension plan assets. Known as the exclusive benefit rule, this section states in pertinent part: Except as provided in paragraph (2), (3), or (4) or subsection (d) of this section, or under sections 1342 and 1344 of this title (relating to the termination of insured plans), the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan. Despite its “exclusive benefit” language concerning the use of plan assets, § 403 of ERISA does not prohibit employer reversions. Section 4044(d)(1) of ERISA, 29 U.S.C. § 1344(d)(1), outlines the circumstances under which employers may recapture surplus assets. [A]ny residual assets of a single-employer plan may be distributed to the employer if— (A) all liabilities of the plan to participants and their beneficiaries have been satisfied, (B) the distribution does not contravene any provision of law, and (C) the plan provides for such a distribution in these circumstances. Allowing an employer to recover surplus assets if these conditions are met is consistent with the policies underlying ERISA. Employers will continue to fund their plans under ERISA guidelines, but will not be penalized for overfunding in “an abundance of caution” or as a result of a miscalculation on the part of an actuary. Thus, employees will continue to be protected to the extent of their specific benefits, but will not receive any windfalls due to the employer’s mistake in predicting the amount necessary to keep the Plan on a sound financial basis. In re C.D. Moyer Co. Trust Fund, 441 F.Supp. 1128, 1132-33 (E.D.Pa.1977), aff'd, 582 F.2d 1273 (3d Cir.1978); Washington-Baltimore Newspaper Guild, 555 F.Supp. at 260. Consistent with § 4044(d) of ERISA," }, { "docid": "23364132", "title": "", "text": "1344 and is therefore entitled to a reversion of the surplus. Resolution of this issue then turns on whether the section 1344(d)(1) requirement, that the plan provides for distribution to the employer, is met by a plan provision unilaterally drafted by the employer, and which is inconsistent with the underlying Pension Agreement. Spang draws our attention to two cases allowing reversion to an employer under similar circumstances, Washington Baltimore Newspaper Guild v. Washington Star Co., 555 F.Supp. 257 (D.D.C.1983), aff'd without opinion 729 F.2d 863 (D.C.Cir.1984); and In Re C.D. Moyer Trust Fund, 441 F.Supp. 1128 (E.D.Pa.1977), .aff'd without opinion, 582 F.2d 1273 (3d Cir.1978). In C.D. Moyer, an original plan provision in a defined benefit plan authorized the employer to alter or amend the pension agreement, providing that in no case should “any of the trust corpus or income be diverted to or revert to” the employer. Despite this provision, the employer amended the plan to provide that “any assets which remain in the Plan because of erroneous actuarial computations after the Plan has satisfied all its liabilities shall be returned to the employer.” The district court upheld this amendment despite the restrictive language of the original plan, reasoning that “trust corpus or income” included “only so much of the funds as were necessary to insure full payment of the plan’s obligations to participants.” 441 F.Supp. at 1132. The court further reasoned: Having determined that the amendment is valid, it follows that a refund to the employer meets the requirements of section 4044(d)(1) of ERISA. This result is consistent with the policies underlying the enactment of ERISA. Employers will continue to fund their plans under ERISA guidelines, but will not be penalized for overfunding in “an abundance of caution” or as a result of a miscalculation on the part of an actuary. Thus, employees will continue to be protected to the extent of their specific benefits, but will not receive any windfalls due to the employer’s mistake in predicting the amount necessary to keep the Plan on a sound financial basis. 441 F.Supp. at 1132-33. In Washington Star, the" }, { "docid": "6142112", "title": "", "text": "far as concerns surplus assets, as to which ERISA so markedly distinguishes between those attributable to employee contributions and those attributable to employer contributions (thus suggesting that employer contributions are not a form of recontributed wages for such purpose). Where a gratuitous trust is fully performed without exhausting the trust estate, a resulting trust of the surplus is presumed to arise in favor of the settlor. Restatement (Second) of TRUSTS § 430. This principle has been looked to in holding an employer entitled to surplus assets on termination of an employer funded defined benefit pension plan. See Wilson v. Bluefield Supply Co., 819 F.2d 457, 464 (4th Cir.1987) (“ ‘Surplus’ is the term used in the common law of trusts to describe any remaining assets in a trust after its purpose has been fulfilled. Under such circumstances, a ‘resulting trust’ for the benefit of the creator of the original trust arises by operation of law, unless he manifested a contrary intent”) (citing Restatement (Sec ond) op Trusts § 430); Washington-Baltimore Newspaper Guild v. Washington Star Co., 555 F.Supp. 257, 260 (D.D.C.1983), aff'd mem., 729 F.2d 863 (D.C.Cir.1984) (“the common law of trusts provides that an employer can retain such a surplus”). Plaintiffs claim that the language of the A & B Plan did not contain an explicit reversion provision as they assert is required by section 4044(d)(1), 29 U.S.C. § 1344(d)(1). They rely on Albedyll v. Wisconsin Porcelain Co. Revised Retirement Plan, 947 F.2d 246, 256 (7th Cir.1991) (“unless the plan specifically provides for reversion to the employer, surplus assets go to beneficiaries and participants”). However, we note that section 4044(d)(1) merely requires that a plan “provide[ ]” for distribution of surplus assets to an employer, it does not say that the provision must be specific, explicit or express. In any event, Albedyll is a total termination case, and section 4044(d)(1) does not address a partial termination. Internal Revenue Code section 401(a)(2) allows employer reversion only on complete termination. 26 U.S.C. § 401(a)(2) (only after satisfaction of all liabilities). See also 26 C.F.R. § 1.401-2(b)(l). Internal Revenue Code section 411(d)(3)" }, { "docid": "18685254", "title": "", "text": "“exclusive benefit rule” of ERISA. That rule prohibits diversion of pension funds to an employer but expressly allows residual assets of a defined benefit fund to revert to the employer if all liabilities of the plan have been satisfied and the plan documents permit the reversion. See § 4044(d)(1) of ERISA, 29 U.S.C. § 1344(d)(1). The court noted that the employer was obligated to pay into the trust only so much money as was necessary to ensure full payment of the defined benefit levels, and that the overfunding resulted from payments in excess of that contractual requirement. Accordingly, the court concluded that the phrase “trust corpus or income” referred to only that portion of the fund resulting from contributions which the employer was obliged to make, and that the excess lawfully belonged to it. Moyer was then followed in Pollock v. Castrovinci, 476 F.Supp. 606, 612-13 (S.D.N.Y.1979), aff'd, 622 F.2d 575 (2d Cir.1980), and Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., 555 F.Supp. 257 (D.D.C.1983), aff'd without opinion, 729 F.2d 863 (D.C.Cir.1984). In Washington Star, the original plan documents provided that, in the event of termination, no part of the Trust Fund would revert to the company prior to satisfaction of all liabilities to employees. In 1976, following the passage of ERISA, the company amended the plan to provide that upon termination, the trustees would pay all obligations, distribute the balance, and that “in no event shall any of the Trust Fund ... be returned to the Employer____” In July of 1981, the Star announced the closing of the newspaper, and the trustees amended the above section to provide that the residual assets remaining after full satisfaction of liabilities would be returned to the employer. Again, as in Moyer, the court interpreted the contractual language in tandem with the exclusive benefit rule of ERISA and found that the language limiting the amendment power was mere boilerplate intended to signify the employer’s statutory obligations but not to override the § 4044(d)(1) exception allowed under ERISA. The court also relied on language in the plan expressly limiting the rights of" }, { "docid": "14334375", "title": "", "text": "the Chevron Retirement Plan, plaintiffs have no right to any surplus Gulf Plan assets. Section 18.d expressly states that upon a plan termination surplus assets are to revert to Chevron. Any residual assets of the Trust Fund remaining after such allocation shall be distributed to the Participating Companies if (i) all liabilities of the Plan for the accrued benefits of the Members, spouses, joint pensioners and Beneficiaries who have an interest in the Plan have been satisfied and (ii) such a distribution does not contravene any provision of law. (Defendants’ Ex. 21 at p. 41) Plaintiffs reply that § 18.d is invalid with regard to Gulf Plan assets for three rea sons. First, plaintiffs contend that § 18.d violates ERISA’s exclusive benefit rule, § 403(c)(1) of ERISA, 29 U.S.C. § 1103(c)(1), and Code § 401(a). Second, they contend that the merger of the Gulf and Chevron plans was illegal under the plan merger rules § 208 of ERISA, 29 U.S.C. § 1058. Finally, plaintiffs contend that § 18.d contravenes the A & B Plan, the CRP, and the SAP, which state that all plan assets are to be used for the exclusive benefit of participants and that all contributions are to be irrevocable. The Court will address each of these arguments to determine whether § 18.d bars plaintiffs’ claims to surplus Gulf Plan assets. (a) Validity of § 18.d Under ERISA’s Exclusive Benefit Rule Prior to ERISA the common law of trusts allowed employers to retain surplus assets. Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., 555 F.Supp. 257, 260 (D.D.C.1983), aff'd, 729 F.2d 863 (D.C.Cir.1984). At common law when a trust had fully performed its purpose without exhausting the trust estate, a resulting trust arose by operation of law for the benefit of the creator of the trust unless he had manifested a different intention. Pollock v. Castrovinci, 476 F.Supp. 606, 616 (S.D.N.Y.1979), aff'd mem., 622 F.2d 575 (2d Cir.1980); Wilson v. Bluefield Supply Co., 819 F.2d 457, 464 (4th Cir.1987). Under ERISA employers may recapture surplus assets or amend plans to permit a reversion of such assets" }, { "docid": "14334376", "title": "", "text": "CRP, and the SAP, which state that all plan assets are to be used for the exclusive benefit of participants and that all contributions are to be irrevocable. The Court will address each of these arguments to determine whether § 18.d bars plaintiffs’ claims to surplus Gulf Plan assets. (a) Validity of § 18.d Under ERISA’s Exclusive Benefit Rule Prior to ERISA the common law of trusts allowed employers to retain surplus assets. Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., 555 F.Supp. 257, 260 (D.D.C.1983), aff'd, 729 F.2d 863 (D.C.Cir.1984). At common law when a trust had fully performed its purpose without exhausting the trust estate, a resulting trust arose by operation of law for the benefit of the creator of the trust unless he had manifested a different intention. Pollock v. Castrovinci, 476 F.Supp. 606, 616 (S.D.N.Y.1979), aff'd mem., 622 F.2d 575 (2d Cir.1980); Wilson v. Bluefield Supply Co., 819 F.2d 457, 464 (4th Cir.1987). Under ERISA employers may recapture surplus assets or amend plans to permit a reversion of such assets as long as the reversion does not violate ERISA and is not prohibited by the plan’s language. Wright v. Nimmons, 641 F.Supp. 1391, 1406 (S.D.Tex.1986); Washington-Baltimore Newspaper Guild, 555 F.Supp. at 259. Section 403(c)(1) of ERISA, 29 U.S.C. § 1103(c)(1), sets forth the general rule regarding the use and purpose of pension plan assets. Known as the exclusive benefit rule, this section states in pertinent part: Except as provided in paragraph (2), (3), or (4) or subsection (d) of this section, or under sections 1342 and 1344 of this title (relating to the termination of insured plans), the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan. Despite its “exclusive benefit” language concerning the use of plan assets, § 403 of ERISA does not prohibit employer reversions. Section 4044(d)(1) of ERISA, 29 U.S.C. § 1344(d)(1), outlines the circumstances under which employers may recapture surplus" }, { "docid": "5783358", "title": "", "text": "year, as calculated by the formula specified by the plan. Hoover v. Cumberland, Maryland Area Teamsters Pension Fund, 756 F.2d 977, 981-82 (3d Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111 (1985). “Normal retirement age” is defined in ERISA as the date so specified by the plan or the later of either the attainment of age 65 or 10 years participation in the plan. 29 U.S.C. § 1002(24). b. Plan Terminations Under ERISA and ERISA’s Exclusive Benefit Rule and Fiduciary Duty Provisions A single employer plan may be terminated pursuant to section 1341. 29 U.S.C. § 1341. Section 1344 governs the allocation of plan assets upon termination of the plan. 29 U.S.C. § 1344. Section 1344(a) contains an ordering provision which prioritizes the parties to whom the assets must be distributed. 29 U.S.C. § 1344(a). Upon plan termination, section 1344(d)(1) permits an employer to recoup surplus assets remaining after the liabilities to par ties listed in section 1344(a) have been met, if the recapture does not contravene any provision of law and if the plan permits the recapture of surplus assets. 29 U.S.C. § 1344(d)(1). See also Blessitt v. Retirement Plan for Employees of Dixie Engine Co., 848 F.2d 1164, 1170 (11th Cir.1988); Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., 555 F.Supp. 257, 261 (D.D.C.1983), aff’d, 729 F.2d 863 (D.C.Cir.1984); In re C.D. Moyer Co. Trust Fund, 441 F.Supp. 1128, 1132 (E.D.Pa.1977), aff’d, 582 F.2d 1275 (3d Cir.1978) (plan included language necessary to reserve the employer’s right to the remaining trust assets). Section 1344 ensures employers will “not be penalized for overfunding ‘in an abundance of caution’ or as a result of a miscalculation on the part of an actuary. Accordingly, employees will continue to be protected to the extent of their specific benefits but will not receive any windfalls due to the employer’s mistake in predicting the amount necessary to keep the Plan on a sound financial basis.” In re C.D. Moyer Co. Trust Fund, 441 F.Supp. at 1132-33. See also Chait v. Bernstein, 835 F.2d 1017, 1027 (3rd Cir.1987); Wright, 641 F.Supp." }, { "docid": "14334378", "title": "", "text": "assets. [A]ny residual assets of a single-employer plan may be distributed to the employer if— (A) all liabilities of the plan to participants and their beneficiaries have been satisfied, (B) the distribution does not contravene any provision of law, and (C) the plan provides for such a distribution in these circumstances. Allowing an employer to recover surplus assets if these conditions are met is consistent with the policies underlying ERISA. Employers will continue to fund their plans under ERISA guidelines, but will not be penalized for overfunding in “an abundance of caution” or as a result of a miscalculation on the part of an actuary. Thus, employees will continue to be protected to the extent of their specific benefits, but will not receive any windfalls due to the employer’s mistake in predicting the amount necessary to keep the Plan on a sound financial basis. In re C.D. Moyer Co. Trust Fund, 441 F.Supp. 1128, 1132-33 (E.D.Pa.1977), aff'd, 582 F.2d 1273 (3d Cir.1978); Washington-Baltimore Newspaper Guild, 555 F.Supp. at 260. Consistent with § 4044(d) of ERISA, Code § 401(a)(2) allows a plan to qualify if it prohibits diversion of plan assets prior to the satisfaction of employees’ liabilities. These statutes “are clearly intended to ensure that while an employer is obligated to provide defined benefits to plan participants, the participants should not be able to claim a windfall stemming from the employer’s accidental overfunding of a de fined benefit plan.” Washington-Baltimore Newspaper Guild, 555 F.Supp. at 260. See Pollock, 476 F.Supp. at 612-613. The Court therefore concludes that § 18.d of the Chevron Retirement Plan does not violate ERISA’s exclusive benefit rule. (b) Validity of the 1986 Plan Merger Under § 208 of ERISA Plaintiffs argue that before the 1986 merger of the Gulf and Chevron plans, Gulf Plan participants would have received surplus Plan assets upon a termination of the Gulf Plan. After the merger, however, § 18.d expressly provided that any residual assets would revert to Chevron. According to plaintiffs, § 18.d therefore violates § 208 of ERISA because under § 18.d plaintiffs would not receive everything they would" }, { "docid": "2596928", "title": "", "text": "to the court over District 65’s ERISA claims, 28 U.S.C. § 1331 would. It is unnecessary to address jurisdiction under 28 U.S.C. § 1331 in light of the fact that District 65 has already been dismissed as a plaintiff on the basis of lack of standing. . The District Court for the District of Columbia stated in Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., that \"[i]n addition to section 4044(d)(1), the common law of trusts provides that an employer can retain such surplus____ These provisions are clearly intended to insure that while an employer is obligated to provide defined benefits to plan participants, the participants should not be able to claim a windfall stemming from the employer’s accidental overfunding of a defined benefit plan.” 555 F.Supp. at 560. Excess assets that result from “erroneous actuarial computation\" arise when the plan’s \"actual requirements differ from the expected requirements even though the latter were based upon previous actuarial valuations of liabilities or determinations of costs of providing pension benefits under the plan and were made by a [competent] person.” 26 C.F.R. § 1.401-2(b)(l) (1981). . ERISA § 406 provides in part: (a) Except as provided in section 1108 of this title: (1) A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction .constitutes a direct or indirect— (D) transfer to, or use by or for the benefit of, a party in interest, of any assets of the plan; (b) A fiduciary with respect to a plan shall not— (1) deal with the assets of the plan in his own interest or for his own account, (2) in his individual or in any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries, or (3) receive any consideration for his own personal account from any party dealing with such plan in connection with a transaction involving the assets of" }, { "docid": "18685253", "title": "", "text": "ERISA fiduciaries recovering residual plan assets has been set forth in several published opinions which the parties have exhaustively and intelligently analyzed. The first of these decisions, In re C.D. Moyer Co. Trust Fund, 441 F.Supp. 1128 (E.D.Pa.1977), aff'd without opinion, 582 F.2d 1273 (3d Cir.1978), concerned an application by the Pension Benefit Guaranty Corp. for appointment of a trustee to acquire and distributed $90,000 excess remaining in the defendant’s Pension Trust after satisfaction of all liabilities. The plan in question authorized the employer to amend the pension agreement, but provided that in no case could such an amendment provide “for any of the trust corpus or income to be diverted to or revert to either of the employers or to be used for any purpose other than the exclusive benefit.” Id. at 1131. Despite this language, the employer amended the plan to provide that, upon termination and satisfaction of all liabilities, the employer could recover excess assets resulting from actuarial error. The district court noted that the language regarding the amendment power tracked the “exclusive benefit rule” of ERISA. That rule prohibits diversion of pension funds to an employer but expressly allows residual assets of a defined benefit fund to revert to the employer if all liabilities of the plan have been satisfied and the plan documents permit the reversion. See § 4044(d)(1) of ERISA, 29 U.S.C. § 1344(d)(1). The court noted that the employer was obligated to pay into the trust only so much money as was necessary to ensure full payment of the defined benefit levels, and that the overfunding resulted from payments in excess of that contractual requirement. Accordingly, the court concluded that the phrase “trust corpus or income” referred to only that portion of the fund resulting from contributions which the employer was obliged to make, and that the excess lawfully belonged to it. Moyer was then followed in Pollock v. Castrovinci, 476 F.Supp. 606, 612-13 (S.D.N.Y.1979), aff'd, 622 F.2d 575 (2d Cir.1980), and Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., 555 F.Supp. 257 (D.D.C.1983), aff'd without opinion, 729 F.2d 863 (D.C.Cir.1984). In" }, { "docid": "5783360", "title": "", "text": "at 1406-07. Title II of ERISA allows reversion of surplus assets to the employer upon termination of a plan without loss to the plan of its tax exempt status. See 26 U.S.C. § 401(a)(2). Treasury Regulation § 1.401-2(b)(1) defines “surplus” as “any balance remaining in the trust which is due to erroneous actuarial computations,” i.e., “arising because actual requirements differ from the expected requirements.... ” 26 C.F.R. § 1.401-2(b)(1). Title II of ERISA requires the vesting of all accrued benefits upon termination of a plan, not withstanding the vesting provisions contained by the plan, in order for the plan to retain tax-exempt status. 26 U.S.C. § 411(d)(3). In addition, the Treasury, the PBGC and the Department of Labor issued on 23 May 1984 joint administrative guidelines (the “Joint Guidelines”). The Joint Guidelines require employers to vest benefits of plan participants prior to terminating and spinning off a plan and prior to recapturing surplus assets. The Joint Guidelines require employers to cover accrued benefits prior to such spin-off and termination with annuity contracts. PBGC News Release 84-23 (23 May 1984), reprinted at 11 Pens.Rep. (BNA) 724 (28 May 1984). The Joint Guidelines provide: “[Wjhen an employer terminates a defined benefit pension plan, it may not recover any surplus assets until it has fully vested all participants' benefits and has purchased and distributed annuity contracts to protect participants against the risk that their accrued benefits may be jeopardized by future market fluctuations or other factors.” Id. at 111. ERISA, 29 U.S.C. § 1104(a)(1), imposes on plan fiduciaries certain duties to participants. One court has described these duties as having three components: a “duty of loyalty” to plan participants, a duty of care to administer the plan “with the ... skill, prudence, and diligence ... [of] a prudent [person]” and a duty to act “for the exclusive purpose” of providing benefits to plan participants. Berlin v. Michigan Bell Tel. Co., 858 F.2d 1154, 1162 (6th Cir.1988). In addition, section 1103(c)(1) contains ERISA’s “exclusive benefit rule” which provides that plan assets “shall never inure to the benefit of any employer and shall be held" }, { "docid": "23364133", "title": "", "text": "satisfied all its liabilities shall be returned to the employer.” The district court upheld this amendment despite the restrictive language of the original plan, reasoning that “trust corpus or income” included “only so much of the funds as were necessary to insure full payment of the plan’s obligations to participants.” 441 F.Supp. at 1132. The court further reasoned: Having determined that the amendment is valid, it follows that a refund to the employer meets the requirements of section 4044(d)(1) of ERISA. This result is consistent with the policies underlying the enactment of ERISA. Employers will continue to fund their plans under ERISA guidelines, but will not be penalized for overfunding in “an abundance of caution” or as a result of a miscalculation on the part of an actuary. Thus, employees will continue to be protected to the extent of their specific benefits, but will not receive any windfalls due to the employer’s mistake in predicting the amount necessary to keep the Plan on a sound financial basis. 441 F.Supp. at 1132-33. In Washington Star, the original plan authorized the employer to amend the plan so long as no amendment diverted “any part of” the trust fund to a purpose other than the exclusive benefit of the employees. The original termination provision provided that “In no event shall any of the trust fund be ... returned to the employer.” The employer subsequently amended the termination provisions to provide that “any assets remaining in the trust Fund after the full satisfaction of all liabilities of the Plan to participants and their beneficiaries shall be returned to the employer.” The district court found this amendment to be authorized and effective, reasoning that the “exclusive benefit” language of the amendment authorization adopted not only the fiduciary rule of ERISA, but the § 1344(d)(1) exception to that rule, allowing reversion to the employer, as well. Since the termination provision was effectively amended to allow reversion, such a return of monies to the employer was held not to violate ERISA. The Washington Star district court also relied on the C.D. Moyer opinion’s statement of the policy" }, { "docid": "5783362", "title": "", "text": "for the exclusive purposes of providing benefits to participants in the plan.” 29 U.S.C. § 1103(c)(1). The ERISA exclusive benefit rule, 29 U.S.C. § 1103(c)(1), specifically makes an exception for the recapture of surplus assets by employers pursuant to section 1344(d)(1) following termination of a plan. Courts therefore generally hold the exclusive benefit rule does not prohibit employers from recouping assets in excess of those required to meet plan liabilities prior to termination. See, e.g., Audio Fidelity Corp. v. Pension Ben. Guaranty Corp., 624 F.2d 513 (4th Cir.1980); Walsh v. Great Atlantic & Pacific Tea Co., 96 F.R.D. 632 (D.N.J.1983), aff’d, 726 F.2d 956 (3d Cir.1983); In re C.D. Moyer Co. Trust Fund, 441 F.Supp. at 1128. A plan which contains language parroting the language of the ERISA exclusive benefit rule will not be found to prohibit reversion of surplus assets to an employer. Fechter v. HMW Industries, Inc., 879 F.2d 1111, 1117 (3d Cir.1989); Chait, 835 F.2d at 1026 (“A rule that read ERISA ‘exclusive benefit’ language to prohibit reversion to the employer might tempt employers to be overly cautious in funding their plans[,] ... a result that would benefit no one.”); Wright, 641 F.Supp. at 1406- 07 (“Common sense dictates that employers which fund plans under ERISA guidelines should not be penalized for overfunding in an abundance of caution or as a result of miscalculation by the actuary.”). Only where the language of a plan clearly prohibits all reversions to an employer or prohibits any amendment to the plan which permits such reversions will a plan be held to prohibit the recapture of surplus assets despite the allowance of section 1344(d)(1). See, e.g., Bryant v. International Fruit Products Co., 793 F.2d 118, 122-23 (6th Cir.), cert. denied, 479 U.S. 986, 107 S.Ct. 576, 93 L.Ed.2d 579 (1986); Delgrosso v. Spang and Co., 769 F.2d 928, 935 (3d Cir.1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2246, 90 L.Ed.2d 692 (1986); Rosenbaum v. Davis Iron Works, Inc., 669 F.Supp. 813, 818-20 (E.D.Mich.1987), aff’d in part and rev’d in part, 871 F.2d 1088 (6th Cir.), cert. denied, — U.S. —," }, { "docid": "6142127", "title": "", "text": "Plan was established, provided that a plan would be tax exempt if under the trust instrument it is impossible, at any time prior to the satisfaction of all liabilities with respect to employees and their beneficiaries under the trust, for any part of the corpus or income to be used for purposes other than for the exclusive benefit of the participants or their beneficiaries. Internal Revenue Code, 53 Stat. § 165(2) (1939). The Treasury Regulations originally promulgated for section 165(a), which continue in effect without presently relevant substantive change, make clear that, notwithstanding the “exclusive benefit” phrase, the “prior to” language of that section permits the employer to recover surplus assets upon termination of the plan if those assets stem from actuarial error. See notes' 19 & 22, supra. Because both the Tax Code and ERISA require exclusive benefit language and contemplate that an employer may recover surplus assets after all plan liabilities are satisfied, the mere existence of the exclusive benefit provision in the A & B Plan cannot prohibit reversion to an employer. Courts construing pension plans containing this “exclusive benefit” language follow the rule that the phrase does not prohibit rever sion of surplus assets to the employer upon termination of the plan. See, e.g., Chait v. Bernstein, 835 F.2d 1017, 1023 (3rd Cir.1987) (“Thus, the text of ERISA itself demonstrates that the ‘exclusive benefit’ language of ERISA § 403 is not at odds with reversion of the surplus of a single employer plan under § 4044(d)(1)(C)”); Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., 555 F.Supp. 257, 261 (D.D.C.1983) (“section 4044(d)(1) of [ERISA] provides that an employer may retain a plan’s surplus without running afoul of the exclusive benefit rule”), aff'd mem., 729 F.2d 863 (D.C.Cir.1984); In re C.D. Moyer Co. Trust Fund, 441 F.Supp. 1128, 1132 (E.D.Pa.1977), aff'd without published opinion, 582 F.2d 1273 (3d Cir.1978). The use of the “exclusive benefit” language in the A & B Plan does not preclude reversion of surplus assets to Gulf. B. Prohibition of Amendments Decreasing Employee Rights Plaintiffs extend their argument that the A & B" }, { "docid": "23387522", "title": "", "text": "cites an exception to this general rule contained in section 403(c)(2) of ERISA which allows the return of employer contributions if the contribution was made by reason of a mistake of fact. § 403(c)(2)(A). The ruling then states: “. . . Language providing for a return of contributions in the circumstances specified in section 403(c)(2)(A) . of ERISA may now be included in a plan intended to qualify under the Internal Revenue Code. Provisions incorporating such language may be effective as of a date no earlier than the date section 403(c)(2) of ERISA is effective. Plans which are amended only to include language essentially equivalent to the language of section 403(c)(2) of ERISA will not fail to satisfy section 401(a)(2) of the Code solely as the result of such an amendment.” A similar approach must be taken in the ease at bar. The provisions of sections 403(d)(1) and 4044(d)(1) of ERISA represent an exception to the general rule prohibiting diversion of assets. The challenged amendment includes the language necessary to reserve the employer’s right to the remaining trust assets as required under section 4044(d)(1)(C) of ERISA and as permitted under the Internal Revenue Code, 26 U.S.C. § 401(a)(2). VI Having determined that the amendment is valid, it follows that a refund to the employer meets the requirements of section 4044(d)(1) of ERISA. This result is consistent with the policies underlying the enactment of ERISA. Employers will continue to fund their plans under ERISA guidelines, but will not be penalized for overfunding in “an abundance of caution” or as a result of a miscalculation on the part of an actuary. Thus, employees will continue to be protected to the extent of their specific benefits, but will not receive any windfalls due to the employer’s mistake in predicting the amount necessary to keep the Plan on a sound financial basis. YII For the foregoing reasons, the Application of the Pension Benefit Guaranty Corporation will be denied, and the existing Trustee is authorized to distribute the remaining assets to the employer in accordance with section 4044(d)(1) of ERISA. . Subsection (b). . Subsection" } ]

[ { "docid": "22258553", "title": "", "text": "(1981); Estelle, 429 U.S. at 102-03, 97 S.Ct. at 290-91. As such, it has both an objective component (was there a sufficiently serious deprivation?) and a subjective component (was the deprivation brought about in wanton disregard of the inmate’s rights?). See Wilson v. Setter, — U.S. -, 111 S.Ct. 2321, 2324-25, 115 L.Ed.2d, 271 (1991). In prac tice, as this case illustrates, these components may overlap or merge. In evaluating the quality of medical care in an institutional setting, courts must fairly weigh the practical constraints facing prison officials. See id. Ill S.Ct. at 2326. Moreover, inadvertent failures to provide medical care, even if negligent, do not sink to the level of deliberate indifference. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986); Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir.1981); Ferranti v. Moran, 618 F.2d 888, 890-91 (1st Cir.1980). In order to establish deliberate indifference, the complainant must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain. See Wilson, 111 S.Ct. at 2324-25; Steading v. Thompson, 941 F.2d 498, 500 (7th Cir.1991). The requisite state of mind may be manifested by the officials’ response to an inmate’s known needs or by denial, delay, or interference with prescribed health care. Estelle, 429 U.S. at 104-05, 97 S.Ct. at 291-92. While this mental state can aptly be described as “recklessness,” it is recklessness not in the tort-law sense but in the appreciably stricter criminal-law sense, requiring actual knowledge of impending harm, easily preventable. See Wilson, 111 S.Ct. at 2324-26; McGill v. Duckworth, 944 F.2d 344, 347 (7th Cir.1991). B. Next, we consider the supportability of the district court’s factual findings. In performing this task, our standard of review is highly respectful. Under Fed. R.Civ.P. 52(a), we assay findings of fact in a bench trial only for clear error. See, e.g., Jackson v. Harvard Univ., 900 F.2d 464, 466 (1st Cir.), cert. denied, — U.S. -, 111 S.Ct. 137, 112 L.Ed.2d 104 (1990); Keyes v. Secretary of the Navy, 853 F.2d 1016, 1019 (1st Cir.1988). Deference to the" } ]

[ { "docid": "23240406", "title": "", "text": "instantly mobilized to take control of the situation but failed to intervene immediately. We conclude that it was not. At the time these events occurred in 1993, it was clear that as a component of their duty to provide inmates with humane conditions of confinement, prison officials were required to “ ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 831, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984)). Further, it was well established that encompassed within that duty was a requirement that prison officials take reasonable steps “ ‘to protect prisoners from violence at the hands of other prisoners.’” Id. (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988)); see also Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir.1987). Knowledge by prison officials of a sufficiently serious threat of physical harm posed by other prisoners and deliberate indifference to such a risk plainly amounted to a violation of the Eighth Amendment. See Farmer, 511 U.S. at 831-34 & n. 2, 114 S.Ct. at 1976-77 & n. 2 (noting that Eighth Amendment is violated by prison officials when two requirements met: (1) action or inaction results in or creates a sufficiently serious risk of a deprivation that objectively results in denial of the “minimal civilized measure of life’s necessities” and (2) a “sufficiently culpable state of mind”—here deliberate indifference) (internal quotation marks omitted). Nevertheless, the Court has recognized: [Pjrison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official’s duty under the Eighth Amendment is to ensure reasonable safety, a standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions. Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably" }, { "docid": "12122387", "title": "", "text": "omitted). A finding of deliberate indifference requires a strong likelihood, rather than a mere possibility, that self-infliction of harm will occur. State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.), cert. denied, 464 U.S. 995, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983). Torraco’s responses to prison staff inquiries and the affirmative actions taken by Messina support our conclusion that the undisputed record cannot sustain a finding that defendants were deliberately indifferent to Torraco’s need for safety. Messi-na’s failure to take any protective action in lieu of or in addition to scheduling additional counseling sessions may very well present a claim of negligence. However, as with other serious needs, a finding of deliberate indifference to an inmate’s need for safety requires more than a showing of negligence. Here, it requires evidence that Messina’s scheduling of additional counseling sessions was “so inadequate as to shock the conscience,” Sires, 834 F.2d at 13, or that his failure to take further protective action was “so dangerous (in respect to health or safety) that [his] knowledge of a large risk can be inferred,” Cortes-Quinones, 842 F.2d at 558 (quotation omitted). Because we find no such evidence, we conclude that the record does not support a finding of deliberate indifference to Torraco’s serious need for safety. III. Conclusion In light of the foregoing, the district court’s order granting defendants’ motions for summary judgment is AFFIRMED. . \"T.H.C.” is the acronym for tetrahydrocanna-binol, an active constituent of marijuana. . Torraco told Messina that his mother forced him to walk around the house naked at a party and to perform sexual acts with her. Torraco also reported being raped and forced to have oral sex with his uncle while pictures were taken. .The eighth amendment applies to the states through the fourteenth amendment. Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988). . Our conclusion that a jury could find that Torraco had a serious mental health need is based on the following facts: that Torraco attempted suicide in April of 1984" }, { "docid": "4489880", "title": "", "text": "because no one had become ill. The court granted dismissal to Evans and Rhodes on the ground that appellants had presented no evidence on the reclassification claim. As to the dismissal of the reclassification claim, we affirm. However, for the reasons discussed below, we reverse the dismissal of the eighth amendment claim and remand for further proceedings. It is well established that \"[w]hen prison officials intentionally place prisoners in dangerous surroundings, or when they ignore prisoners' serious medical needs, or when they are `deliberately indifferent' either to prisoners' health or safety, they violate the [eighth amendment to] the Constitution.\" Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.s. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988). This court has held \"[t]here are circumstances in which prison work requirements constitute cruel and unusual punishment.\" Johnson v. Clinton, 763 F.2d 326, 328 (8th Cir.1985). As the district court recognized, prison inmates are protected from punishment for refusing to perform an unconstitutional assignment, as they are protected from having to perform the assignment. East v. Lemons, 768 F.2d 1000, 1000-01 (8th Cir.1985). \"`[F]or prison officials knowingly to compel convicts to perform physical labor ... which constitutes a danger to their health, or which is unduly painful constitutes an infliction of cruel and unusual punishment prohibited by the Eighth Amendment....'\" Johnson v. Clinton, 763 F.2d at 328 (quoting Ray v. Mabry, 556 F.2d 881, 882 (8th Cir.1977) (per curiam)). Certain \"acts or omissions [are] so dangerous (in respect to health or safety)\" that knowledge of the risk can be inferred. Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d at 558. We need not address the court's holding that appellants failed to prove a prima facie eighth amendment violation because they failed to present evidence concerning appellees' actual or constructive knowledge of the presence of toxic or explosive gases, because we believe the court ignored and minimized other obvious dangers. First, Moore testified to the danger of heatstroke of placing an inmate who had been working outside on a hot July day in a confined space with a temperature of 125 degrees, and a" }, { "docid": "2564000", "title": "", "text": "“unnecessary and wanton pain and suffering ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Id. at 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). The new standard, which some courts have termed the “malicious and sadistic” standard, see Berry v. City of Muskogee, 900 F.2d 1489, 1494-95 (10th Cir.1990), and others, the “obduracy and wantonness” standard, see Wilson v. Seiter, 893 F.2d 861, 867 (6th Cir.1990), cert. granted, — U.S. -, 111 S.Ct. 41, 112 L.Ed.2d 17 (1990); see also Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir.1987) (terming the prison riot standard the “more stringent ‘wantonness’ standard”), applies only when “a prison security measure is undertaken to resolve a disturbance.” Whitley, 475 U.S. at 320, 106 S.Ct. at 1084; see Wright v. Jones, 907 F.2d 848, 851 (8th Cir.1990); Berry 900 F.2d at 1495; see also Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990) (en banc) (vacating a grant of summary judgment for prison guard because under Whitley’s malicious and sadistic standard, verbal provocation would not justify a prison guard’s alleged repeated strikes with a riot baton of inmate), cert. denied, — U.S. -, 111 S.Ct. 1018, 112 L.Ed.2d 1100. No prison riot or actual violence confronts us here. Conditions of prison confinement, in contrast to an exigent riot or other act of violence (existing, not merely feared) must be addressed by the “deliberate indifference” standard rather than an “obduracy and wantonness” standard. See Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.) (“When prison officials ... are ‘deliberately indifferent’ either to prisoners’ health or safety, they violate the Constitution.”), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988); Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir.1987) (“eighth amendment protects a convicted inmate from physical harm at the hands of fellow inmates resulting from the deliberate or callous indifference of prison officials to" }, { "docid": "22200226", "title": "", "text": "60 L.Ed.2d 447 (1979). Although deliberate indifference does not require an intent to deprive an individual of his or her rights, or a “knowing willingness” that such consequences will occur, Whitley v. Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986), the standard does require a greater degree of culpability than negligence or gross negligence. To act in deliberate indifference to another’s rights, a defendant must have an awareness of a high probability of harm, and yet, consciously choose to disregard the risk. See Walker v. Norris, 917 F.2d 1449, 1454 (6th Cir.1990) (actor exhibits deliberate indifference by deliberately disregarding risk after becoming aware of risk). Because a defendant will rarely admit an awareness and conscious disregard of a risk, the trier of fact must examine objective criteria. W. Keeton, Prosser and Keeton on Torts 213 (5th ed.1984); Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.) (infer actor’s knowledge of risk based on magnitude of risk), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988). This requires an analysis of the surrounding circumstances, which include the context in which the defendant chooses a course of action and the obviousness of the risk resulting from the defendant’s conduct. I assume this method of proving deliberate indifference is what the majority refers to when stating reckless conduct is “equivalent to a deliberate choice.” See also Fargo v. City of San Juan Bautista, 857 F.2d 638, 642 n. 7 (9th Cir.1988) (trier of fact may infer conscious disregard from conduct). Thus, to prove deliberate indifference, or a conscious decision to disregard another’s rights, the context must be examined. As we stated in Berg v. Kincheloe, 794 F.2d 457 (9th Cir.1986), in applying the standard of deliberate indifference, the trier of fact must consider whether, in allegedly exposing the prisoner to danger, the defendant prison official(s) were guided by considerations of safety to other inmates.... More generally, the legal standard must not be applied to an idealized vision of prison life, but to the prison as it exists, and as prison official(s) are realistically capable of" }, { "docid": "4364143", "title": "", "text": "haste, under pressure,’ and balanced against ‘competing institutional concerns for the safety of prison staff or other inmates.’ ” Id. (quoting Whitley, 475 U.S. at 320, 106 S.Ct. at 1084). In such extreme circumstances, the Court defined wantonness as “acting ‘ “maliciously and sadistically for the very purpose of causing harm.” ’ ” Id. (quoting Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973))). In non-emergency situations, there is ordinarily not a clash with other important governmental responsibilities but rather plenty of time for reflection; then, “ ‘deliberate indifference’ would constitute wantonness.” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). In Wilson, the Court extended use of the “deliberate indifference” standard from cases of deprivation of medical care to all “prison conditions” eases. See id. As in a prison conditions case, where prison officials formulate a policy in a non-emergency, there are no particular constraints on the officials’ decisionmaking process which justify a requirement of “malice” for culpability. See Redman v. County of San Diego, 942 F.2d 1435, 1442 (9th Cir.1991) (en banc). Thus, the Supreme Court would apply the “deliberate indifference” standard to this circumstance to determine “wantonness.” The record supports the conclusion that the inmates met their burden of establishing “deliberate indifference.” Superintendent Vail indicated that he adopted the policy without a great deal of knowledge about the impact of the searches upon the inmates, see supra note 4, and that the policy was not required for security purposes. Yet long before the policy was actually implemented, Superintendent Vail was urged by members of his own staff not to institute cross-gender searches due to the psychological trauma which many inmates likely would suffer. Further, once the policy took effect, a court order was necessary to prevent the searches although one of the first inmates to be searched suffered a severe reaction. See supra note 2 and accompanying text. Even now, despite ample testimony of the harmful effects" }, { "docid": "23467177", "title": "", "text": "duty, in part, requires those officials to take reasonable measures to “'protect prisoners from violence at the hands of other prisoners.’” Ibid. (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988)). The Eighth Amendment imposes this duty because being subjected to violent assaults is not “part of the penalty that criminal offenders pay for their offenses....” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. In order to prevail in failure-to-proteet cases, inmates must make two essential showings. First, they must demonstrate that they are “incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at -, 114 S.Ct. at 1977. This objective requirement ensures that the deprivation is sufficiently serious to amount to a deprivation of constitutional dimension. The second requirement inquires into the subjective state of mind of the prison official who is being sued. It mandates that the plaintiff inmates show that the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference.” Id. at -, 114 S.Ct. at 1979. This subjective requirement ensures that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991). Chief Judge Posner has provided an apt description of what prisoners must prove in deliberate-indifference cases. [ T]o be guilty of deliberate indifference [prison officials] must know they are creating a substantial risk of bodily harm. If they place a prisoner in a cell that has a cobra, but they do not know that a cobra is there (or even that there is a high probability that there is a cobra there), they are not guilty of deliberate indifference even if they should have known about the risk, that is, even if they were negligent — even grossly negligent or even reckless in the tort sense —" }, { "docid": "2564001", "title": "", "text": "1495; see also Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990) (en banc) (vacating a grant of summary judgment for prison guard because under Whitley’s malicious and sadistic standard, verbal provocation would not justify a prison guard’s alleged repeated strikes with a riot baton of inmate), cert. denied, — U.S. -, 111 S.Ct. 1018, 112 L.Ed.2d 1100. No prison riot or actual violence confronts us here. Conditions of prison confinement, in contrast to an exigent riot or other act of violence (existing, not merely feared) must be addressed by the “deliberate indifference” standard rather than an “obduracy and wantonness” standard. See Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.) (“When prison officials ... are ‘deliberately indifferent’ either to prisoners’ health or safety, they violate the Constitution.”), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988); Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir.1987) (“eighth amendment protects a convicted inmate from physical harm at the hands of fellow inmates resulting from the deliberate or callous indifference of prison officials to specific known risks of such harm”). Indeed, in Whitley, the Court explicitly upheld the “deliberate indifference” standard for situations in which the allegations “can typically be established or disproved without the necessity of balancing competing institutional concerns for the safety of prison staff or other inmates.” 475 U.S. at 320, 106 S.Ct. at 1084. My discourse on the law may be summarized to the effect that “deliberate indifference” must be established to justify recovery under 42 U.S.C. § 1983 by a prisoner alleging problems with confinement conditions. “Obduracy and wantonness” only applies to address violations in cases of riot or other violence. The case before us dealt with a detail of prison management before violence had erupted. Prevention here is preferable to cure. Although “deliberate indifference,” “like other famous oxymorons in law ... evades rather then expresses meaning,” Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.1985), cert. denied, 979 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986), other courts’ elaboration of the phrase establishes that a failure to prevent harm can raise an" }, { "docid": "23509620", "title": "", "text": "may not act with reckless indifference to a particular vulnerability of which the officials know or should know). The district court’s finding that Superintendent Vail was a credible witness does not undermine the above analysis. As the district court noted, Vail believed that he was in a “lose-lose situation.” He believed that if he did not accede to the union’s demands and institute the cross-gender clothed body search policy, he would be sued by the employees’ union. The wish to avoid a lawsuit from an employees’ union, however, does not provide a justification for inflicting pain of a constitutional magnitude upon inmates, even if the belief that a labor grievance suit would be filed was sincere. Moreover, Vail’s attempts to ensure that the searches were conducted in a professional manner do not negate the conclusion that he was deliberately indifferent to the inmates’ pain when it became obvious that the pain would be inflicted no matter how professionally the searches were conducted. Psychologists on the WCCW staff warned Vail that the guards’ professional demeanor would not ameliorate the risk of psychological harm, and the severe reaction of one inmate occurred during a search that was performed in accordance with the policy. Implicit in Judge Trott’s dissent is the belief that the deliberate indifference standard should not be applied to the adoption of prison policies, because officials who institute policies generally do so after carefully examining the consequences. In the dissent's view, such officials cannot be said to have manifested “deliberate indifference” to the constitutional rights involved, and, thus, prison policies should rarely if ever be found to violate the Eighth Amendment. While at first blush such analysis may have some appeal, a closer examination reveals that it has a fatal infirmity. The dissent’s analysis fails to take into account the full scope of the term “deliberate indifference.” It is not enough to say that before enacting a policy prison authorities considered an issue carefully. That is only one part of their obligation. Prison authorities are also required to afford sufficient weight to the constitutional rights of individuals. The failure to" }, { "docid": "16799184", "title": "", "text": "“ ‘to protect prisoners from violence at the hands of other prisoners.’” Farmer v. Brennan, — U.S. at -, 114 S.Ct. at 1976 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988)). A prisoner may state a cognizable claim regarding the conditions of confinement if he can establish that he has been “incarcerated under conditions posing a substantial risk of serious harm” (an objective inquiry) and that a prison official acted with deliberate indifference (a subjective inquiry). Id. at -, 114 S.Ct. at 1977. In this ease, plaintiff has alleged that Sergeant Ingram sexually assaulted and ha rassed him and told other inmates that he was a homosexual and a “snitch,” that incarceration under these conditions posed a substantial risk of serious bodily harm, that prison officials were on notice of Sergeant Ingram’s sexual harassment because of Mr. Thomas’ complaints of the excessive risk to his safety caused by Sergeant Ingram’s conduct, and that prison officials failed to take reasonable measures to guarantee his safety. The absence of proper supervision, training and discipline in such circumstances is enough to demonstrate deliberate indifference and may form the basis of an Eighth Amendment claim. See Farmer v. Brennan, — U.S. at -, -, 114 S.Ct. at 1979, 1981. The Court concludes that plaintiffs allegations, which must be assumed to be true for the purposes of this motion, are sufficient to state a claim for relief against both Sergeant Ingram and the District of Columbia. B. Municipal Liability Defendants contend that the District of Columbia cannot be held liable for Sergeant Ingram’s alleged conduct because plaintiff cannot demonstrate the existence of an unconstitutional custom or practice of the District of Columbia, as required by Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and because Sergeant Ingram himself did not have policymaking authority. While the law is clear that a plaintiff cannot hold a municipality liable solely on the basis of respondeat superior, a widespread practice or custom, even an informal one, can" }, { "docid": "22200225", "title": "", "text": "required to show that a pretrial detainee has been deprived of his or her right to personal security under the fourteenth amendment. The contours of this level of culpability, however, need clarification. In adopting the standard of deliberate indifference, this court does not engage in a matter of mere semantics. Requiring deliberate indifference recognizes the high degree of deference owed by the courts to the informed decisions of prison officials. This standard acknowledges that prison officials, rather than the courts, are the individuals charged with making complex decisions involving a host of competing considerations, and are better capable of making these decisions. In examining the evidence, we must keep in mind: [CJourts should defer to the informed discretion of prison administrators because the realities of running a corrections institution are complex and difficult, courts are ill equipped to deal with these problems, and the management of these facilities is confided to the Executive and Legislative Branches, not the Judicial Branch. Bell v. Wolfish, 441 U.S. 520, 547 n. 29, 99 S.Ct. 1861, 1878 n. 29, 60 L.Ed.2d 447 (1979). Although deliberate indifference does not require an intent to deprive an individual of his or her rights, or a “knowing willingness” that such consequences will occur, Whitley v. Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986), the standard does require a greater degree of culpability than negligence or gross negligence. To act in deliberate indifference to another’s rights, a defendant must have an awareness of a high probability of harm, and yet, consciously choose to disregard the risk. See Walker v. Norris, 917 F.2d 1449, 1454 (6th Cir.1990) (actor exhibits deliberate indifference by deliberately disregarding risk after becoming aware of risk). Because a defendant will rarely admit an awareness and conscious disregard of a risk, the trier of fact must examine objective criteria. W. Keeton, Prosser and Keeton on Torts 213 (5th ed.1984); Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.) (infer actor’s knowledge of risk based on magnitude of risk), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988). This requires" }, { "docid": "23196366", "title": "", "text": "knowledge of the specific risk of harm to her husband or that the risk was so substantial or pervasive that knowledge can be inferred, see Goka v. Bobbitt, 862 F.2d 646, 651 (7th Cir.1988); Vosburg v. Solem, 845 F.2d 763, 766-67 (8th Cir.), cert. denied, — U.S. -, 109 S.Ct. 313, 102 L.Ed.2d 332 (1988); Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 560 (1st Cir.1988); Meriwether v. Faulkner, 821 F.2d at 417; Martin v. White, 742 F.2d 469, 474 (8th Cir.1984); (2) the City failed to take reasonable measures to avert the harm, see Goka, 862 F.2d at 651; Vosburg, 845 F.2d at 766-67; Morgan v. District of Columbia, 824 F.2d 1049, 1059-60 (D.C.Cir.1987); Martin v. White, 742 F.2d at 475; and (3) the City’s failure to take such measures in light of its knowledge, actual or inferred, justifies liability for the attendant consequences of its conduct, even though unintended, see Goka, 862 F.2d at 651-52 (failure to enforce contraband policy with respect to brooms could be deliberate indifference because of pervasive risk of harm); Vosburg, 845 F.2d at 766-67 (risk of sexual assaults pervasive in prisons and defendants failed to respond reasonably; no policy of segregating prisoners in intake based on nature of crime, criminal record, or psychological profile); Cortes-Quinones, 842 F.2d at 559-61 (mentally ill prisoner dismembered by cellmates; defendants knew or should have known of mental condition of prisoner; prisoner was not segregated and did not receive treatment); Martin v. White, 742 F.2d at 471, 475 (directed verdict for defendant reversed; pervasive risk of sexual assaults in prisons; inadequate patrol procedures; improper positioning of guards; inadequate inmate classification system; inadequate policy for discovering defective cell locks; failure to report assaults and pursue prosecution). Although it is a somewhat close call we believe the deficiencies shown are sufficient that a reasonable jury could find deliberate indifference by the City in the instant case. Berry’s case would have been stronger if she had been able to identify the official she allegedly notified of the danger to her husband and he was an official whose knowledge could be imputed to the" }, { "docid": "23509619", "title": "", "text": "first inmates to be searched suffered a severe reaction. Even now, despite ample testimony of the harmful effects of this policy, the prison officials are intent upon reversing the district court injunction. In short, we find that the record supports but one conclusion: the prison officials acted with deliberate indifference as to the harm that the cross-gender clothed body searches were likely to cause. See Berry v. City of Muskogee, 900 F.2d 1489, 1498 (10th Cir.1990) (knowledge of risk of harm and failure to act to prevent the harm constitute deliberate indifference); see also Williams v. Griffin, 952 F.2d 820, 826 (4th Cir.1991) (same); DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir.1991) (deliberate indifference established by showing knowledge of risk of impending harm that is easily preventable, and failure to prevent it); Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988) (actual or constructive knowledge of risks plus failure to act constitutes deliberate indifference); cf. Redman, 942 F.2d at 1443 (prison officials may not act with reckless indifference to a particular vulnerability of which the officials know or should know). The district court’s finding that Superintendent Vail was a credible witness does not undermine the above analysis. As the district court noted, Vail believed that he was in a “lose-lose situation.” He believed that if he did not accede to the union’s demands and institute the cross-gender clothed body search policy, he would be sued by the employees’ union. The wish to avoid a lawsuit from an employees’ union, however, does not provide a justification for inflicting pain of a constitutional magnitude upon inmates, even if the belief that a labor grievance suit would be filed was sincere. Moreover, Vail’s attempts to ensure that the searches were conducted in a professional manner do not negate the conclusion that he was deliberately indifferent to the inmates’ pain when it became obvious that the pain would be inflicted no matter how professionally the searches were conducted. Psychologists on the WCCW staff warned Vail that the guards’ professional demeanor would" }, { "docid": "23165205", "title": "", "text": "issue for resolution on summary judgment.” Wilson v. Seiter, 893 F.2d 861, 866 (6th Cir.1990), vacated on other grounds, - U.S. -, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). . \"Deliberate indifference” has been variously described as: the possession of \"actual knowledge of impending harm, easily preventable, so that a conscious, culpable refusal to prevent harm could be inferred from [a] failure to prevent it,” Henderson v. De Robertis, 940 F.2d 1055, 1060 (7th Cir.1991); \"the infliction of unnecessary suffering,\" Estelle, 429 U.S. at 103, 97 S.Ct. at 290; Lopez v. Robinson, 914 F.2d 486, 492 (4th Cir.1990); as the \"unnecessary and wanton infliction of pain,” Givens v. Jones, 900 F.2d 1229, 1232 (8th Cir.1990); and as the “knowledge ... of a pervasive risk of harm to inmates from other prisoners” and failure to respond reasonably to the risk, Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 560 (1st Cir.) cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988). .To be sure, prison officials are presented with an arduous task when asked to discern legitimate from illegitimate requests for protective custody: [i]n an ideal world, prisoners would request protective custody based on a sincere fear of physical harm upon which prison officials could rely. However, in a more realistic world, prisoners may feign their fear of physical harm simply to manipulate a transfer. The reasons vary for prisoners to use such fear as a ruse to obtain a transfer to dorm with a friend and/or to obtain better living quarters are examples. Therefore, when a prisoner requests a transfer because he fears for his life, prison officials are required to determine the credibility of his fear. Mullen v. Unit Manager Weber, 730 F.Supp. 640, 645 (M.D.Pa.1990). Prison officials, therefore, are not required to provide protective custody to every inmate who asserts he was assaulted or threatened. Nonetheless, prison officials should, at a minimum, investigate each allegation of violence or threat of violence. Cf. Riley, 777 F.2d at 146-48. . In so holding, we do not foreclose the possibility that the number of potentially liable defendants may increase or decrease" }, { "docid": "11379396", "title": "", "text": "At bottom, “[t]he central question in determining the issue of qualified immunity is whether or not the conduct of the government official violated ‘clearly established law,’ i.e., the ‘ “objective legal reasonableness” of [his] action ... assessed in light of the legal rules that were “clearly established” at the time it was taken_’” Korb, 919 F.2d at 246 (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987)). The right implicated in this case is the Eighth Amendment right to be free from violence at the hands of other inmates. Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984) (noting that prison officials must “take reasonable measures to guarantee the safety of the inmates”). The United States Supreme Court recently elaborated on the parameters of this right in Farmer v. Brennan, — U.S. -,-, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994), in which the Court held that “ ‘prison officials have a duty ... to protect prisoners from violence at the hands of other prisoners.’ ” Id. at-, 114 S.Ct. at 1977 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988)). The Court clarified that an inmate raising this type of Eighth Amendment claim must meet two requirements in order to establish a prima facie case. First, “the deprivation alleged must be, objectively, ‘sufficiently serious’.... For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id. at-, 114 S.Ct. at 1977 (citations omitted); accord Taylor v. Freeman, 34 F.3d 266, 271 (4th Cir.1994). Second, the prison official must have acted with a “sufficiently culpable state of mind. In prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Farmer, — U.S. at-, 114 S.Ct. at 1977 (citations omitted); accord Taylor, 34 F.3d at 271. According to the Farmer Court, deliberate indifference is “something more than mere negligence,”" }, { "docid": "23509618", "title": "", "text": "see Redman v. County of San Diego, 942 F.2d 1435, 1442 (9th Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992), and the implementation of the policy will inflict pain upon the inmates on a routine basis, we need not look for a showing of action taken “maliciously and sadistically” before Eighth Amendment protections are implicated. The record mandates the conclusion that the inmates met their burden of establishing the requisite \"deliberate indifference.\" Superintendent Vail indicated that the policy was not required for security purposes and that he adopted the cross-gender clothed body search policy without a great deal of knowledge about the impact of the searches upon the inmates, see supra note 4. Yet long before the policy was actually implemented, Superintendent Vail was urged by members of his own staff not to institute cross-gender clothed body searches due to the psychological trauma which many inmates likely would suffer. Further, once the policy took effect, a court order was necessary to prevent the searches although one of the first inmates to be searched suffered a severe reaction. Even now, despite ample testimony of the harmful effects of this policy, the prison officials are intent upon reversing the district court injunction. In short, we find that the record supports but one conclusion: the prison officials acted with deliberate indifference as to the harm that the cross-gender clothed body searches were likely to cause. See Berry v. City of Muskogee, 900 F.2d 1489, 1498 (10th Cir.1990) (knowledge of risk of harm and failure to act to prevent the harm constitute deliberate indifference); see also Williams v. Griffin, 952 F.2d 820, 826 (4th Cir.1991) (same); DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir.1991) (deliberate indifference established by showing knowledge of risk of impending harm that is easily preventable, and failure to prevent it); Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988) (actual or constructive knowledge of risks plus failure to act constitutes deliberate indifference); cf. Redman, 942 F.2d at 1443 (prison officials" }, { "docid": "11379397", "title": "", "text": "of other prisoners.’ ” Id. at-, 114 S.Ct. at 1977 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988)). The Court clarified that an inmate raising this type of Eighth Amendment claim must meet two requirements in order to establish a prima facie case. First, “the deprivation alleged must be, objectively, ‘sufficiently serious’.... For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id. at-, 114 S.Ct. at 1977 (citations omitted); accord Taylor v. Freeman, 34 F.3d 266, 271 (4th Cir.1994). Second, the prison official must have acted with a “sufficiently culpable state of mind. In prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Farmer, — U.S. at-, 114 S.Ct. at 1977 (citations omitted); accord Taylor, 34 F.3d at 271. According to the Farmer Court, deliberate indifference is “something more than mere negligence,” but less than acts or omissions undertaken for the very purpose of causing harm, or with knowledge that harm will result. Id. at-, 114 S.Ct. at 1978. Specifically, “an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at-, 114 S.Ct. at 1981. Furthermore, a prison official cannot “escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault.” Id. at-, 114 S.Ct. at 1982. At the time of the events in question, however, Farmer had not been decided, and the law governing failure to protect claims was unclear in some important respects. Under the doctrine of qualified immunity, “although public officials may be ‘charged with knowledge of" }, { "docid": "23165204", "title": "", "text": "Cir.1982) (restricting the totality of circumstances approach to specific conditions of confinement). In Young's case, we find that the totality of the conditions of his imprisonment, namely the protection and sanitation afforded to him, are sufficiently serious to satisfy the objective component of the Wilson Eighth Amendment analysis. . When state of mind is an essential element of the nonmoving party’s claim, resolution of the claim by summary judgment is often inappropriate because a party’s state of mind is inherently a question of fact which turns on credibility. See International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1265 (5th Cir.1991): Miller v. FDIC, 906 F.2d 972, 974 (4th Cir.1990); National Fire Ins. Co. v. Turtur, 892 F.2d 199, 205 (2d Cir.1989); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1437 (6th Cir.1987); see also 10A Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d § 2730 (1983 & 1991 Supp.). In the context of claims arising under the Eighth Amendment, it has been said, “[Sjtate of mind is typically not a proper issue for resolution on summary judgment.” Wilson v. Seiter, 893 F.2d 861, 866 (6th Cir.1990), vacated on other grounds, - U.S. -, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). . \"Deliberate indifference” has been variously described as: the possession of \"actual knowledge of impending harm, easily preventable, so that a conscious, culpable refusal to prevent harm could be inferred from [a] failure to prevent it,” Henderson v. De Robertis, 940 F.2d 1055, 1060 (7th Cir.1991); \"the infliction of unnecessary suffering,\" Estelle, 429 U.S. at 103, 97 S.Ct. at 290; Lopez v. Robinson, 914 F.2d 486, 492 (4th Cir.1990); as the \"unnecessary and wanton infliction of pain,” Givens v. Jones, 900 F.2d 1229, 1232 (8th Cir.1990); and as the “knowledge ... of a pervasive risk of harm to inmates from other prisoners” and failure to respond reasonably to the risk, Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 560 (1st Cir.) cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988). .To be sure, prison officials are presented with an arduous task when asked to discern" }, { "docid": "23509617", "title": "", "text": "S.Ct. at 1084). Because the critique of such decisions in hindsight could chill effective action by prison officials, the Supreme Court has held that the higher standard is appropriate. We conclude that in this situation “wantonness” is determined by the deliberate indifference standard. Unlike judgment in the excessive force context, our task is not to critique in hindsight the exercise of judgment of a particular officer on a specific occasion. The cross-gender clothed body search policy was developed over time, with ample opportunity for reflection. Moreover, unlike incidents of excessive force, the cross-gender clothed body search policy does not inflict pain on a one-time basis; instead, as with substandard conditions of confinement, the policy will continue to inflict pain upon the inmates indefinitely. Cf. Wilson, — U.S. at-n. 1, 111 S.Ct. at 2324 n. 1 (“Undoubtedly deprivations inflicted upon all prisoners are, as a policy matter, of greater concern than deprivations inflicted upon particular prisoners____”). When, as here, officials formulate a policy in circumstances where there are no particular constraints on the officials’ decisionmaking process, see Redman v. County of San Diego, 942 F.2d 1435, 1442 (9th Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992), and the implementation of the policy will inflict pain upon the inmates on a routine basis, we need not look for a showing of action taken “maliciously and sadistically” before Eighth Amendment protections are implicated. The record mandates the conclusion that the inmates met their burden of establishing the requisite \"deliberate indifference.\" Superintendent Vail indicated that the policy was not required for security purposes and that he adopted the cross-gender clothed body search policy without a great deal of knowledge about the impact of the searches upon the inmates, see supra note 4. Yet long before the policy was actually implemented, Superintendent Vail was urged by members of his own staff not to institute cross-gender clothed body searches due to the psychological trauma which many inmates likely would suffer. Further, once the policy took effect, a court order was necessary to prevent the searches although one of the" }, { "docid": "4364144", "title": "", "text": "constraints on the officials’ decisionmaking process which justify a requirement of “malice” for culpability. See Redman v. County of San Diego, 942 F.2d 1435, 1442 (9th Cir.1991) (en banc). Thus, the Supreme Court would apply the “deliberate indifference” standard to this circumstance to determine “wantonness.” The record supports the conclusion that the inmates met their burden of establishing “deliberate indifference.” Superintendent Vail indicated that he adopted the policy without a great deal of knowledge about the impact of the searches upon the inmates, see supra note 4, and that the policy was not required for security purposes. Yet long before the policy was actually implemented, Superintendent Vail was urged by members of his own staff not to institute cross-gender searches due to the psychological trauma which many inmates likely would suffer. Further, once the policy took effect, a court order was necessary to prevent the searches although one of the first inmates to be searched suffered a severe reaction. See supra note 2 and accompanying text. Even now, despite ample testimony of the harmful effects of this policy, the prison officials are intent upon reversing the district court injunction. See Redman, 942 F.2d at 1443 (prison officials may not act with reckless indifference to a particular vulnerability of which the officials know or should know). Under these circumstances, one must conclude that the prison officials’ conduct in this matter has been “wanton.” Judge Bryan properly found that the policy is “unnecessary and wanton,” and that it lacks a penological justification. B The prison officials propose use of another test altogether. They argue that the Eighth Amendment challenge, like all of the inmates’ other assertions, should be measured under the “reasonableness” standard of Turner v. Safley, 482 U.S. 78, 107 5.Ct. 2254, 96 L.Ed.2d 64 (1987), rather than by the traditional Eighth Amendment approach. I agree with the majority’s tacit rejection of this approach. Although the Supreme Court has stated broadly that “the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights,” Washington v. Harper, 494 U.S. 210, 110" } ]

[ { "docid": "22220537", "title": "", "text": "health regulations; (3) A refinery purchased insulation from Keene containing asbestos purchased from the government; employees of the refinery came into contact with it; (4) A factory purchased insulation from Keene containing asbestos procured from a private producer; the product used asbestos pursuant to government specifications and employees of the factory came into contact with it; and so on. Each combination of facts, moreover, may raise a different legal issue so far as to the government’s liability to Keene or our jurisdiction is concerned. Were this an action against a private party, the sufficiency of the notice given by the complaint would obviously be a serious issue. Since the United States is the defendant, however, and actions against it are permissible only where sovereign immunity has been waived, we must first address the government’s challenge to our jurisdiction. We agree with Judge Goettel, whose efforts in reducing this suit to order we much appreciate, that “Keene has attempted to do too much at one time, with too little jurisdiction,” Keene Corp. v. United States, No. 80 Civ. 401, mem. op. at 22 (S.D.N.Y. Sept. 30, 1981). We affirm his dismissal of the complaint for substantially the reasons stated in his opinion. FEDERAL TORT CLAIMS ACT The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680, requires that a claimant against the federal government file an administrative claim with the appropriate agency prior , to institution of suit. Thus, 28 U.S.C. § 26.75(a) provides in pertinent part: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.... The provisions of this subsection shall not apply to such claims as may be asserted under the" } ]

[ { "docid": "2599809", "title": "", "text": "or disregarded as surplusage. So treated, the administrative claim as presented was sufficient. We hold that plaintiffs administrative claim was timely and properly presented and that the district court had jurisdiction to entertain the tort claim against the United States. We vacate the district court’s decision and remand for further proceedings. So ordered. Costs for appellants. APPENDIX A . 28 U.S.C. 2675(a) provides in pertinent part: An action shall not be instituted upon a claim against the United States for money damages for injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing____ The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. . 28 U.S.C. § 2401(b) provides: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing ... of notice of final denial of the claim by the agency to which it was presented. .28 C.F.R. § 14.2(a) provides in pertinent part: For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, ... an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident____ . The Senate Report to the 1966 Amendments to the FTCA, which added Section 2675, state that \"the revised procedure was intended to ease court congestion" }, { "docid": "8854209", "title": "", "text": "January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). The FTCA also provides that the United States “shall be liable ... in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674; Young v. United States, 71 F.3d 1238, 1244 (6th Cir.1995) (The FTCA “is a limited waiver of immunity. The extent of that waiver (i.e. the United States’ amenability to suit and substantive tort liability) is determined by analogizing the United States to a private actor in a similar situation under the appropriate state law.”). For tort claims, 28 U.S.C. § 2401(b) provides: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. Id. Federal law determines when a claim accrues within the meaning of the two-year limitations period. Chomic v. United States, 377 F.3d 607, 610 (6th Cir.2004). An agency’s failure “to make final disposition of a claim within six months after [the claim] is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.” 28 U.S.C. § 2675(a). The six-month period within which an action must be filed is tolled so long as the claim is not finally denied by the agency. Conn v. United States, 867 F.2d 916, 920 (6th Cir.1989). The requirements in 28 U.S.C. § 2675(a) and 28 U.S.C. § 2401(b) that an administrative" }, { "docid": "15697445", "title": "", "text": "to the USPS, as required by the Federal Tort Claims Act (FTCA). Defendants posit that plaintiffs failure to follow the presentment requirements embodied in the FTCA prevents this court from having subject matter jurisdiction over the present controversy. Conversely, plaintiff argues that the April 2, 1994 letter suffices to satisfy the presentment requirements of the FTCA Alternatively, plaintiff argues that her filing of an amended claim on August 17, 1995 cured any defect that her April 2,1994 letter contained. A. The Presentment Requirements Of 28 U.S.C. Section 2675(a) and 2401(b) The federal government and its agencies are “absolutely shielded from tort actions for damages unless sovereign immunity has been waived.” Kline, 603 F.Supp. at 1316 (citing United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976). The FTCA however, waives sovereign immunity in a limited number of tort actions. See 28 U.S.C. Section 2680(h). Sections 2675(a) and 2401(b) require plaintiff to file her claim with the appropriate federal agency before initiating a suit in federal court. Such a claim is a mandatory jurisdictional prerequisite to filing a lawsuit against the United States. Jackson v. United States, 730 F.2d 808, 809 (D.C.Cir.1984). Therefore, if a plaintiff does not meet these requirements, a court lacks jurisdiction to entertain a tort claim against the United States. Id. Section 2675(a) reads, in pertinent part, An action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency 28 U.S.C. Section 2675(a). Section 2401(b) requires such a claim to be presented to the appropriate federal agency “within two years after such claim accrues or unless action is begun within six months after ... notice of final denial of the claim by the agency to which it was presented.” Congress did not include the “presentment” requirements to frustrate plaintiffs who have tort claims against the United States. GAF, 818 F.2d at 917-18. Rather, the reason for such requirements is to give the implicated agency an opportunity to investigate claims that are lodged against it and" }, { "docid": "4311837", "title": "", "text": "GEE, Circuit Judge: Emma Reynolds fell into a manhole on August 10,1981. The manhole belonged to the Sewerage and Water Board of the City of New Orleans (City); the United States Veterans Administration (VA) was doing construction work around it. On April 22, 1982, Ms. Reynolds filed an administrative claim against the VA for injuries allegedly suffered in the fall. She filed a Federal Tort Claims Act (FTCA) suit in the United States District Court for the Eastern Dis trict of Louisiana against the United States (Government) and the City on August 10, 1982. The VA sent Ms. Reynolds notice of denial of her claim on October 22, 1982. On May 31, 1983, the district court granted the Government’s motion to dismiss for lack of subject matter jurisdiction. With the Court’s permission, Ms. Reynolds filed an amended, supplemental complaint on June 13, 1983. The district court granted the Government’s motion to dismiss Ms. Reynolds’ amended complaint for lack of subject matter jurisdiction and entered judgment for the Government. This judgment became final November 17, 1983, and from it Ms. Reynolds appeals. Two statutory provisions, govern this case. They are 28 U.S.C. § 2401(b) and 28 U.S.C. § 2675(a). They provide in pertinent part as follows: § 2401. Time for commencing action against United States •t * # 1« * ■ * (b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. § 2675. Disposition by federal agency as prerequisite; evidence (a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or- death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant" }, { "docid": "23542145", "title": "", "text": "Opinion by Judge BERZON; Concurrence by Chief Judge KOZINSKI; Dissent by Judge TASHIMA; Dissent by Judge BEA. OPINION BERZON, Circuit Judge: We agreed to hear this case en banc to clarify whether the statute of limitations in 28 U.S.C. § 2401(b) of the Federal Tort Claims Act (“FTCA”) may be equitably tolled. We hold that § 2401(b) is not “jurisdictional,” and that equitable tolling is available under the circumstances presented in this case. I. BACKGROUND A. Statutory Background The FTCA contains three timing rules that govern when a plaintiff may file a claim against the United States in the district court: First, 28 U.S.C. § 2675(a) establishes an administrative exhaustion requirement, which states that “[a]n action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency.” Section 2675 further provides that “[t]he failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim.” Id. Second, one statute of limitations in § 2401(b) sets a two-year deadline within which a claimant must present his claim “to the appropriate Federal agency ... after such claim accrues.” Id. § 2401(b); see United States v. Kubrick, 444 U.S. 111, 119-21, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Finally, § 2401(b) also establishes a second limitations period — that “[a] tort claim against the United States shall be forever barred ... unless action is begun within six months after the ... final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). With this statutory framework in mind, we turn to the procedural history of this case, the material facts of which are not in dispute. B. Facts More than a decade ago, Kwai Fun Wong (“Wong”) and Wu Wei Tien Tao Association (“the Association”), a religious organization, sued the United States and several Immigration and Naturalization" }, { "docid": "613410", "title": "", "text": "was acting in the scope of his employment, remove the case, and procure dismissal on the ground that plaintiff must first seek administrative relief. By that time it is too late for such relief and plaintiff is left without a remedy. Apprehension of such “sandbagging” underlies Kelley’s holding that plaintiffs injured in collisions are not subject to the FTCA’s administrative exhaustion require ment. See, e.g., Wollman, 637 F.2d at 549 (distinguishing Kelley on this basis); Reiser v. Di Pietro, 78 F.R.D. 541, 542 (N.D.Ill.1978) (same). In the present case, however, Houston was not ignorant of the fact that Howard was in the course of his employment for the USPS. The postal van was clearly marked as such, and Houston's knowledge is conclusively demonstrated by the fact that he sued the United States and USPS in state court and timely filed an FTCA administrative claim. Therefore, we hold that before the United States is forced to defend a tort suit arising from a collision between a private vehicle and a government vehicle, the plaintiff-at least one who knows or should know that the driver was a government employee-must meet the FTCA's administrative exhaustion requirements and then timely commence suit against the government as provided by 28 U.S.C. § 2401(b). II, Having concluded that Houston's claim was subject to the FTCA, we must ascertain whether he met the jurisdictional prerequisites of that statute. We hold that Houston did not comply with the FTCA. The applicable limitations period is stated in 28 U.S.C. § 2401(b): \"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.\" Though phrased in the disjunctive, this statute requires a claimant to file an administrative claim within two years and file suit within six months of its denial. Willis v. United States, 719 F.2d 608, 612" }, { "docid": "259979", "title": "", "text": "provides: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or' employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675(a). In other words, to meet the threshold requirement of administrative exhaustion, plaintiffs must either (1) have their administrative claims finally denied by the relevant federal agency; or (2) if the agency fails to act on their administrative claims within six months of presentment, they may thereafter deem the claims (constructively) denied. If § 2675(a)’s exhaustion requirement establishes a date before which a claim cannot be filed, § 2401(b)’s limitations period establishes the date after which any claim is barred. Recall, this provision states: “A tort claim against the United States shall be forever barred unless ... action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). The issue — one of first impression in this circuit — is simply how these two provisions relate to one another. To resolve this issue, we begin by looking at the statutory text. See First Nat’l Bank of Durango v. Woods (In re Woods), 743 F.3d 689, 694 (10th Cir.2014) (noting that statutory interpretation “must begin ... with the language of the statute itself’ (internal quotation marks omitted)). In doing so, our analysis is guided by the fact that, “[l]ike a waiver of [sovereign] immunity" }, { "docid": "23554739", "title": "", "text": "death, alleging negligence in failure to close the road in question. During the course of the state suit, appellants discovered that the negligence of National Park Service rangers might have been a cause of the accident. Appellants contend the first indication that United States’ employees might have been involved was a dispatcher’s tape-recording discovered on June 12, 1982. Appellants filed an administrative claim with the Department of Interior on July 30, 1982. A field solicitor for the Department of Interior sent appellants a letter by certified mail on September 8, 1982. The letter stated that “[b]ecause [the] claims were not ‘presented in writing to the appropriate Federal agency within two years’ after the claims accrued, they [are] barred pursuant to 28 U.S.C. 2401(b).” The letter quoted § 2401(b) in its entirety but did not otherwise indicate that it was a notice of the final denial of appellants’ claim. Six months and three days after the mailing of the letter, on March 11, 1983, appellants filed this Federal Tort Claims Act (FTCA) action in the United States District Court for the District of Hawaii. Section 2401(b) provides the statute of limitations for the Federal Tort Claims Act: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. Section 2401(b) establishes two jurisdictional hurdles, both of which must be met. See Claremont Aircraft, Inc. v. United States, 420 F.2d 896 (9th Cir.1969); Schuler v. United States, 628 F.2d 199 (D.C.Cir.1980) (en banc) (per curiam). A claim must be filed with the agency within two years of the claim’s accrual, and the claimant must file suit within six months of administrative denial of the claim. If either requirement is not met, suit will be time barred. 28 C.F.R. § 14.9, captioned “final denial of claim,” sets down the procedure for" }, { "docid": "7115249", "title": "", "text": "the enactment of the FTCA, the government has generally waived its sovereign immunity from tort liability for the negligent or wrongful acts or omissions of its agents who act within the scope of their employment.”). No suit may be filed under the FTCA, however, unless the claimant has made a timely application to the agency involved for administrative settlement and the claim has been denied or not acted upon for 6 months. 28 U.S.C. § 2675; see also 28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”). The purpose of this administrative claim procedure is to allow the agency to consider possible settlement “without the need for filing suit and possible expensive and time-consuming litigation.” S.Rep. No. 1327, 89th Cong., 2d Sess. 3 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2515, 2517. In McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), the United States Supreme Court held that prior filing of an administrative claim is a jurisdictional prerequisite for any judicial proceeding. Id. at 110-12, 113 S.Ct. 1980 (holding that full exhaustion of the administrative remedy is necessary before a lawsuit can be initiated). Accordingly, the Government created Standard Form 95 for this purpose, though an administrative claim does not need to be submitted on a special form, as long as the agency receives timely and reasonable notice of a claim of tortious wrongdoing. Williams v. United States, 693 F.2d 555, 557 (5th Cir.1982) (“[W]e have held that no particular form or manner of giving such notice is required as long as the agency is somehow informed of the fact of and amount of the claim within the two year period ... neither a Form 95 nor any other particular form of claim is required[.]”). In" }, { "docid": "15272491", "title": "", "text": "by an explanatory affidavit or other repository of uneontested facts), draw all reasonable inferences from them in her favor, and dispose of the challenge accordingly.” Id. (citations omitted). This type of challenge has been dubbed a “sufficiency challenge.” In this case, Defendant presents a sufficiency challenge, and the Court will therefore, credit Plaintiffs’ version of the procedural facts as set forth above. 2. The Administrative Exhaustion Requirement of the FTCA The Federal Tort Claims Act provides that, “a tort claim against the United States is ‘forever barred’ unless it is presented within two years after the claim accrues.” Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002) (citing 28 U.S.C. § 2401(b)). Section 2401(b) provides that: [a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b). It is thus clear that an “... FTCA claim must be dismissed if plaintiff fails to file a timely administrative claim.” Gonzalez, 284 F.3d at 288 (citation omitted). Finally, the administrative filing requirement is a “jurisdictional prerequisite to suit that cannot be waived.” Id. (citations omitted). Notwithstanding these stringent requirements, there is a savings clause that can resurrect an otherwise untimely claim. “This provision excuses a plaintiffs failure to exhaust administrative remedies where: (1) the tort claim accrued within two years of the state court action and (2) the plaintiff presents the claim to the appropriate federal agency within sixty days after the dismissal of the action.” Id., citing 28 U.S.C. § 2679(d)(5). In the case at bar, much of the parties’ arguments- concern the accrual date of Plaintiffs’ claim. Plaintiffs seek to invoke the “discovery rule” to push the accrual date of their cause of action to February 9, 1999, the day they received the coroner’s autopsy report detailing the cause of their son’s death." }, { "docid": "16930152", "title": "", "text": "FTCA claim against the VA and remanded his remaining state law claims against Okeechobee Hospital and Dr. Kruszel to the state circuit court. II. As we have noted elsewhere, “[t]he FTCA is a specific, congressional exception to the general rule of sovereign immunity [that] allows the government to be sued by certain parties under certain circumstances for particular tortious acts committed by employees of the government.” Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.1994). As a result, courts must be careful to observe scrupulously the circumstances and conditions of this waiver. See id. One such condition, set forth in 28 U.S.C. § 2675(a), requires that the administrative agency being sued receive notice and an opportunity to resolve the dispute without litigation: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675(a). If the claim is not presented in writing to the agency within two years after it accrues, it is forever barred. 28 U.S.C. § 2401(b). A claim is deemed to be presented “when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the accident.” 28 C.F.R. § 14.2 (2001)." }, { "docid": "4311838", "title": "", "text": "and from it Ms. Reynolds appeals. Two statutory provisions, govern this case. They are 28 U.S.C. § 2401(b) and 28 U.S.C. § 2675(a). They provide in pertinent part as follows: § 2401. Time for commencing action against United States •t * # 1« * ■ * (b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. § 2675. Disposition by federal agency as prerequisite; evidence (a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or- death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim' within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. Under these two provisions, one who wishes to bring an action against the government pursuant to the FTCA must first present an administrative claim to the appropriate federal agency. No action may be brought against the government until that agency has finally denied the claim in writing. Once the agency’s final, written denial has been sent to the claimant, the claimant has six months within which to bring his FTCA action against the" }, { "docid": "22968092", "title": "", "text": "that the cause of action was barred by the two-year limitation for presenting claims in tort as provided by 28 U.S.C. §§ 2401(b), 2675(a), and by 28 C.F.R. 14.-2. The district court rejected the statute of limitations defense and, after a trial on the merits, held that the Government driver was negligent in the operation of his vehicle. Damages of $20,000.00 were awarded. This appeal followed. The single question for us on appeal is whether plaintiff’s claim was barred by the statute of limitations under the Tort Claims Act. 28 U.S.C. § 2401(b) (1970), as amended in 1966, embodies the statute of limitations applicable to this case: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2675(a) (1970) requires a claimant to exhaust his administrative remedies before a federal court has jurisdiction to hear his claim: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. * * * 28 U.S.C. § 2672 (1970) provides for the administrative adjustment of claims. Those settlements in the amount of $25,-000.00 or less may be settled within the affected agency; any settlement in excess of $25,000.00 must be approved by the Attorney General or his designee. To effectuate this administrative provision, 28 C.F.R. 14.2(a) (1972) provides: For purposes of the provisions of Section 2672 of Title 28, United States Code," }, { "docid": "259978", "title": "", "text": "both an administrative-exhaustion requirement, set forth in 28 U.S.C. § 2675(a), and a statute of limitations, set forth in 28 U.S.C. § 2401(b). Combined, these provisions act as chronological bookends to an FTCA claim, marking both a date before which a claim may not be filed and a date after which any filing is untimely. The Barneses conflate these two distinct features of the statutory scheme when they argue that compliance with the administrative-exhaustion requirement under § 2675(a)’s “deemed denial” provision effectively exempted them from § 2401(b)’s six-month limitations period. To the contrary (as the district court correctly found), the six-month limitations period in § 2401(b) is triggered by an agency’s formal denial of a potential plaintiff’s administrative claims — regardless of whether that plaintiff has filed a claim pursuant to § 2675(a)’s “deemed denial” provision. The administrative-exhaustion requirement applicable to FTCA claims “bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). Section 2675(a) provides: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or' employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675(a). In other words, to meet the threshold requirement of administrative exhaustion, plaintiffs must either (1) have their administrative claims finally denied by the relevant federal agency; or (2) if the agency fails to act on their administrative claims within six months of" }, { "docid": "1403710", "title": "", "text": "which must be brought against the United States under the Federal Torts Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-79. They also argue that pursuant to § 2679(d)(1), the United States should be substituted as the only proper defendant on the common-law tort claims. Additionally, since plaintiff has not exhausted the administrative remedies as required by § 2675, they maintain the court lacks subject matter jurisdiction and those claims should be dismissed. The court agrees with these arguments but finds that, under the circumstances of this case, the dismissal of these counts against the federal defendants should be without prejudice. The provisions of the FTCA apply to claims including assault, battery, and false imprisonment arising from acts or omissions of federal investigative or law enforcement officers. 28 U.S.C. § 2680(h). Individual federal officers are immune from suit on common-law torts under the provision in the FTCA which makes suit against the United States the exclusive remedy for such claims. Rivera v. United States, 928 F.2d 592, 608-09 (2nd Cir.1991). Failure to name the United States as defendant in a FTCA suit results in a lack of subject matter jurisdiction. Allgeier v. United States, 909 F.2d 869, 871 (6th Cir.1990). Assuming arguendo that suit was brought under the FTCA against the United States, a claim must first be presented to the appropriate federal agency and that claim be finally denied by the agency in writing prior to filing a FTCA claim. 28 U.S.C. § 2675(a). A tort claim against the United States is barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless FTCA action is begun six months after final denial of the claim by the agency. 28 U.S.C. § 2401(b). A claim under the FTCA must be filed within six years of when the action first accrues. 28 U.S.C. § 2401(a). In the present case, plaintiffs common-law tort claims should be filed against the United States under the FTCA rather than the DEA, INS, or agent Hawes. Leave to amend the complaint would be appropriate but plaintiff" }, { "docid": "18322275", "title": "", "text": "filing of an administrative claim. See e.g., Employees Welfare Committee v. E.H. Daws, 599 F.2d 1375 (5th Cir.1975); Kielwien v. United States, 540 F.2d 676 (4th Cir.1976); Painter v. Federal Bureau of Investigation, 537 F.Supp. 232 (N.D.Ga.1982). The statute governing this prerequisite and its statute of limitations reads in pertinent part: ... an action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. 28 U.S.C. § 2675(a). A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing by certified or registered mail, or notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b). The government contends that plaintiffs’ claims accrued on the day of the arrest, or April 25, 1975. Since plaintiffs did not file their administrative complaint until five years later, or August 22, 1980, the government submits that this action is untimely. Plaintiff's response is twofold. First, plaintiffs urge the Court to read § 2401(b) as mandating the filing of a claim against the United States within two years after the claim accrues or within six months after such claim has been denied by the proper administrative agency. Plaintiffs thus argue that even if the claim accrued on the date of arrest, as long as suit was filed in federal district court within six months of an agency’s denial, compliance with the statute has been effectuated. Plaintiffs’ arguments ignore well-established case law in addition to the clear language of the statute. Quite" }, { "docid": "7115248", "title": "", "text": "wrongful act or omission of any employee of the Government while acting with the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). The FTCA exempts, however, among other things, “any claim arising in respect of ... the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer[.]” 28 U.S.C. § 2680(c). As the sovereign, the United States is immune from suit unless it has consented to be sued. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”). Through the FTCA, the United States has consented to suits “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment[.]” 28 U.S.C. § 1346(b)(1); see also Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994) (“Through the enactment of the FTCA, the government has generally waived its sovereign immunity from tort liability for the negligent or wrongful acts or omissions of its agents who act within the scope of their employment.”). No suit may be filed under the FTCA, however, unless the claimant has made a timely application to the agency involved for administrative settlement and the claim has been denied or not acted upon for 6 months. 28 U.S.C. § 2675; see also 28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”). The purpose of this administrative claim procedure is to allow the agency to consider possible settlement “without the need for filing suit and possible expensive and time-consuming litigation.” S.Rep. No." }, { "docid": "1403711", "title": "", "text": "States as defendant in a FTCA suit results in a lack of subject matter jurisdiction. Allgeier v. United States, 909 F.2d 869, 871 (6th Cir.1990). Assuming arguendo that suit was brought under the FTCA against the United States, a claim must first be presented to the appropriate federal agency and that claim be finally denied by the agency in writing prior to filing a FTCA claim. 28 U.S.C. § 2675(a). A tort claim against the United States is barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless FTCA action is begun six months after final denial of the claim by the agency. 28 U.S.C. § 2401(b). A claim under the FTCA must be filed within six years of when the action first accrues. 28 U.S.C. § 2401(a). In the present case, plaintiffs common-law tort claims should be filed against the United States under the FTCA rather than the DEA, INS, or agent Hawes. Leave to amend the complaint would be appropriate but plaintiff has not exhausted her administrative remedies. However, plaintiff is not yet foreclosed from pursuing those remedies. Plaintiff claims her cause of action arises out of events occurring on October 8, 1991. Neither the two-year statute of limitations for filing a claim with the appropriate federal agency nor the six-year statute of limitations for the FTCA have run. Accordingly, plaintiffs common-law tort claims against the federal defendants should be dismissed without prejudice in order to follow the procedures as required under the FTCA. 3. Section 1983 claims — color of federal law. Plaintiff alleges violations of 42 U.S.C. § 1983 in count III against agent Hawes and in count IV against the DEA and INS. First, the federal defendants maintain that defendant Hawes is not subject to suit under § 1983 since he acts under color of federal law, not state law as required by § 1983. The court agrees with this contention to the extent that the allegations would be against Hawes acting on his own. Every person who, under color of any statute, ordinance," }, { "docid": "613411", "title": "", "text": "who knows or should know that the driver was a government employee-must meet the FTCA's administrative exhaustion requirements and then timely commence suit against the government as provided by 28 U.S.C. § 2401(b). II, Having concluded that Houston's claim was subject to the FTCA, we must ascertain whether he met the jurisdictional prerequisites of that statute. We hold that Houston did not comply with the FTCA. The applicable limitations period is stated in 28 U.S.C. § 2401(b): \"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.\" Though phrased in the disjunctive, this statute requires a claimant to file an administrative claim within two years and file suit within six months of its denial. Willis v. United States, 719 F.2d 608, 612 (2d Cir.1983) (per Friendly, J.); Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir.1984); Schuler v. United States, 628 F.2d 199, 201 (D.C.Cir.1980); cf. Reynolds v. United States, 748 F.2d 291 (5th Cir.1984) (dismissing amended complaint brought against United States after the expiration of the six-month period, even though plaintiff had timely filed an administrative claim). These limitations periods are jurisdictional. Equitable considerations that may waive or toll limitations periods in litigation between private parties do not have that same effect when suit is brought against the sovereign. E.g., Goff v. United States, 659 F.2d 560, 561 (5th Cir.1981). This is so because under the doctrine of sovereign immunity the government's exposure to liability can be no greater than it permits. Id.; see also Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir.1981) (filing of suit within six months of administrative denial is a jurisdictional requirement); Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir.1975) (stating that because it is a waiver of sovereign immunity, the six-month filing requirement must be followed strictly);" }, { "docid": "8992946", "title": "", "text": "claim. DISCUSSION Section 2401(b) provides that a tort claim against the United States is barred “unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” No notice of final denial was issued to Parker by the Department of Agriculture regarding his claim. 28 U.S.C. § 2675(a) states that the “failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim.” The Government argues that the six month period of limitations set forth in section 2401(b) began to run when Parker filed his initial action in August of 1989. It contends that, by virtue of section 2675(a), the filing of the action constituted a “final denial of the claim by the agency” for purposes of section 2401(b). No precedent supports such a reading of these sections. We reject the argument. Section 2675 requires that a claim be presented to the appropriate federal agency prior to bringing suit under the FTCA. See Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir.1980). If an administrative claim has been properly filed, section 2675(a) provides that a claimant need not wait longer than six months for the agency to act on his claim before bringing suit pursuant to the FTCA. This ensures that the exhaustion requirement does not unduly burden claimants. After six months have elapsed, section 2675(a) specifies that the claimant has the option “any time thereafter*’ to pursue his claim in district court under the FTCA. Section 2401(b) contains two statutes of limitations. The first requires that an administrative claim be filed with the appropriate agency within two years after the claim accrued. Parker met this requirement. The second requires that an FTCA suit be brought within six months “after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”" } ]

[ { "docid": "10864281", "title": "", "text": "resulting loss of revenue. The line had to be drawn somewhere, and we cannot substitute our judgment for that of Congress merely on the basis of apparent hardships in particular cases. See Metzger Trust v. Commissioner, 76 T.C. 42, 80 (1981), affd. 693 F.2d 459 (5th Cir. 1982). The definition of \"member of the family” in section 2032A(e)(2) falls within the margin that must be allowed for the play of legislative judgment. Burnet v. Wells, supra. Decision will be entered for the respondent. Unless otherwise indicated, all statutory references are to the Internal Revenue Code of 1954 as amended and in effect at the date of death. Effective for decedents dying after 1981, sec. 2032A(e)(2) reads: (2) Member of family. — The term \"member of the family” means, with respect to any individual, only— (A) an ancestor of such individual, (B) the spouse of such individual, (C) a lineal descendant of such individual, of such individual’s spouse, or of a parent of such individual, or (D) the spouse of any lineal descendant described in subparagraph (C). For purposes of the preceding sentence, a legally adopted child of an individual shall be treated as the child of such individual by blood. The legislative history of the Economic Recovery Tax Act of 1981 (Pub. L. 97-34, 95 Stat. 172) also contradicts petitioner’s interpretation. In describing the \"Present Law” (i.e., the law in effect at the date of decedent’s death) Congress stated: \"The term [qualified heir] does not include members of a spouse’s family.” H. Rept. 97-201 (1981), 1981-2 C.B. 352, 380 n. 4; H. Rept. 97-215 (Conf.) (1981), 1981-2 C.B. 481,510. See note 2 supra. Petitioner’s argument is based on evidence purporting to establish an agreement between the spouses that they would each execute wills leaving the property to Patricia and Hartley in the event that the other spouse died first. Assuming for purposes of this case tfyat' such agreement would have been honored does not change the result here reached." } ]

[ { "docid": "14342672", "title": "", "text": "On behalf of decedent’s estate, petitioners elected to value decedent’s interest in the farmland under the provisions of section 2032A. In the statutory notice of deficiency, respondent disallowed the claimed election because the ranch did not constitute \"qualified real property” within the meaning of section 2032A(b)(l). OPINION The sole issue for decision is whether the ranch qualifies for a special use valuation under section 2032A. Generally, section 2032A permits certain qualifying farms and other real property used in a trade or business to be valued for estate tax purposes according to its actual use at the time of decedent’s death. Sec. 2032A. When the requirements of section 2032A are met, the qualifying property may be valued by capitalizing the income derived from the actual use of the property rather than adopting its fair market value based on its highest and best use. Sec. 20.2032A-3(a), Estate Tax Regs. In order to qualify for the \"special use valuation,” (1) the decedent must have been a citizen or resident of the United States; (2) the property must be located in the United States; (3) the property must pass to a qualified heir, who must be a member of the decedent’s family; (4) the property must have been used as a farm or in a trade or business by the decedent, or a member of decedent’s family; and (5) there must be \"material participation” in the operation of the farm or the business by the decedent or a member of decedent’s family. The ownership and use requirements must continue for 15 years after decedent’s death to avoid recapture of part of the tax savings resulting from the special use valuation. Sec. 2032A(c); Estate of Sherrod v. Commissioner, 82 T.C. 523 (1984); Estate of Coon v. Commissioner, 81 T.C. 602 (1983). The parties agree that all of the above-mentioned requirements other than (4) and (5) have been met. We will first decide whether decedent used the property for a \"qualified use” as required by section 2032A(b)(l)(A)(i) and (C)(i); if so, we will then decide whether decedent materially participated in the operation of the ranch as" }, { "docid": "10395525", "title": "", "text": "value is defined as “the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts.” Sec. 20.2031-l(b), Estate Tax Regs. Fair market value is determined on the highest and best use to which the property can be put, without much consideration for the actual use of the property. Sec. 2032A requires that: (1) The decedent was a citizen or a resident of the United States at the date of death; (2) the property to be specially valued is located in the United States; (3) such property represents 50 percent or more of the adjusted value of the gross estate; (4) the real property has been used for a qualified purpose at the decedent’s death {defined as use as a farm for farming purposes or use in a trade or business other than for farming purposes); (5) the property has passed to a member of the decedent’s family who qualifies under sec. 2032A; (6) 25 percent or more of the adjusted value of the gross estate consists of the property that was used for a qualified purpose by the decedent or his family for 5 of the 8 years preceding the decedent’s death; and (7) there was material participation by the decedent or a member of his family in the operation of the farm or other business. Sec. 2032A(b); Estate of Cowser v. Commissioner, 736 F.2d 1168 (7th Cir. 1984), affg. 80 T.C. 783 (1983); Estate of Coon v. Commissioner, 81 T.C. 602, 607-608 (1983); Estate of Geiger v. Commissioner, 80 T.C. 484, 488 (1983). For purposes of this case, the statute merely permits acquisitions of property from trusts. Sec. 2032A(e)(9)(C) provides in pertinent part: (9) Property acquired from decedent. — -Property shall be considered to have been acquired from or to have passed from the decedent if— (C) such property is acquired by any person from a trust (to the extent such property is includible in the gross estate of the decedent). The report of the" }, { "docid": "10876989", "title": "", "text": "(as before), his son-in-law, Anthony, continued to operate the farm under the 1977 lease, as extended. Since, by stipulated agreement of the parties, the estate was \"entitled to, and did receive, a special valuation for the entire farm under Section 2032A,” [Stip. 14] it is clear that Anthony was a qualified heir (section 2032A(e)(1) and (2)) using qualified property for a qualified use under that section. The sole provision which might have excused petitioners’ failure to use the farm for a post-death qualified use during all or a portion of the period of administration of the decedent’s estate, is section 2032A(c)(7)(A), which was added by section 421(c)(2)(A) of the Economic Recovery Tax Act of 1981, Pub. L. 97-34, 95 Stat. 172, and which establishes a 2-year grace period immediately following the date of the decedent’s death, as follows: (A) No tax IF USE BEGINS WITHIN 2 YEARS. — If the date on which the qualified heir begins to use the qualified real property (hereinafter in this subparagraph referred to as the commencement date) is before the date 2 years after the decedent’s death— (i) no tax shall be imposed under paragraph (1) by reason of the failure by the qualified heir to so use such property before the commencement date, and (ii) the 10-year period[ ] under paragraph (1) shall be extended by the period after the decedent’s death and before the commencement date. While this provision is generally retroactive to estates of decedents dying after December 31, 1976, including the estate of the decedent (see Pub. L. 97-34, sec. 421(k)(5), 95 Stat. 172, 314), it does not benefit petitioners in the instant case, since Anthony, who was a qualified heir within the meaning of section 2032A(e)(l) and (2), was involved in the qualified post- death use of the farm (i.e., the sharecrop lease) immediately after the death of the decedent. Moreover, even if Anthony’s use of the farm did not constitute the beginning of the qualified use of the farm by the qualified heir within the meaning of the new section 2032A(c)(7), two years after the death of the" }, { "docid": "10964043", "title": "", "text": "provision, both expressly permit protective elections. Secs. 20.2032A-8(b), 20.6166-l(d), (g), Estate Tax Regs. By implication, these regulations suggest that a protective election under section 2032 can be made. For example, the fact that a protective election can be made under section 2032A, sec. 20.2032A-8(b), Estate Tax Regs., and the fact that a dual election under both section 2032 and section 2032A can be made, Rev. Rul. 88-89, 1988-2 C.B. 333; Rev. Rui. 83-31, 1983-1 C.B. 225, suggest that a protective dual election can be made. Respondent’s third argument is that petitioner’s protective election would allow it to “indefinitely postpone making a decision on the applicable valuation date.” According to respondent, “petitioner’s attempted protective election would read the timely election requirements of I.R.C. §2032 out of the Internal Revenue Code.” In considering this argument, we note that petitioner filed its protective election with a timely estate tax return. Therefore, the protective election was made within the time required by section 2032(d). See sec. 5h.4(b), Temporary Regs., 49 Fed. Reg. 35489 (Sept. 10, 1984), relating to Deficit Reduction Act elections. This is not a case in which the election was made after the due date, Estate of Ryan v. Commissioner, 62 T.C. 4 (1974); Estate of Downe v. Commissioner, 2 T.C. 967 (1943); Estate of Flinchbaugh v. Commissioner, 1 T.C. 653 (1943), or where the taxpayer attempted to make an election but failed to include essential information, see McDonald v. Commissioner, 89 T.C. 293 (1987), affd. in part and revd. in part 853 F.2d 1494 (8th Cir. 1988); Estate of Gunland v. Commissioner, 88 T.C. 1453 (1987). In this case, the “election” was made on a timely return and was complete — albeit conditional — as filed. We further note that petitioner stated in its protective election that it chose the alternate valuation method under section 2032 if “the Special Use Valuation herein elected is for any reason disapproved”. The occurrence of this condition was entirely beyond petitioner’s control. Thus, we fail to see how petitioner’s protective election allowed it “to indefinitely postpone making a decision on the applicable valuation date.” This" }, { "docid": "10395526", "title": "", "text": "2032A; (6) 25 percent or more of the adjusted value of the gross estate consists of the property that was used for a qualified purpose by the decedent or his family for 5 of the 8 years preceding the decedent’s death; and (7) there was material participation by the decedent or a member of his family in the operation of the farm or other business. Sec. 2032A(b); Estate of Cowser v. Commissioner, 736 F.2d 1168 (7th Cir. 1984), affg. 80 T.C. 783 (1983); Estate of Coon v. Commissioner, 81 T.C. 602, 607-608 (1983); Estate of Geiger v. Commissioner, 80 T.C. 484, 488 (1983). For purposes of this case, the statute merely permits acquisitions of property from trusts. Sec. 2032A(e)(9)(C) provides in pertinent part: (9) Property acquired from decedent. — -Property shall be considered to have been acquired from or to have passed from the decedent if— (C) such property is acquired by any person from a trust (to the extent such property is includible in the gross estate of the decedent). The report of the House Ways and Means Committee described the reasons for the change as follows: “Your committee believes that, when land is actually used for farming purposes or in other closely held businesses (both before and after the decedent’s death), it is inappropriate to value the land on the basis of its potential “highest and best use” especially since it is desirable to encourage the continued use of property for farming and other small business purposes. Valuation on the basis of highest and best use, rather than actual use, may result in the imposition of substantially higher estate taxes. In some cases, the greater estate tax burden makes continuation of farming, or the closely held business activities, not feasible because the income potential from these activities is insufficient to service extended tax payments or loans obtained to pay the tax. Thus, the heirs may be forced to sell the land for development purposes. Also, where the valuation of land reflects speculation to such a degree that the price of the land does not bear a reasonable relationship" }, { "docid": "18930567", "title": "", "text": "estate, but only sufficient property to satisfy the threshold requirements of section 2032A(b)(l). Sec. 20.2032A-8(a)(2), Estate Tax Regs. The election is to be made on the Federal estate tax return in the manner prescribed by the regulations. Sec. 2032A(d)(l). Section 1025 of the Deficit Reduction Act of 1984 retroactively amended section 2032A(d)(3) to provide that the Secretary shall prescribe procedures that give the executrix of the estate of a decedent dying after 1976 a reasonable time within which to cure defects in a section 2032A election. Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 1025(a), 98 Stat. 1030. In any case in which the executrix timely files an election in “substantial compliance” with the regulations but which does not contain the required information, the executrix will have a reasonable time, not to exceed 90 days after notification of such failures, to provide all of the information. Sec. 2032A(d)(3). Section 20.2032A-8(a)(3), Estate Tax Regs., delineates 14 items of information that petitioner must submit with the Federal estate tax return: (i) The decedent’s name and taxpayer identification number as they appear on the estate tax return; (ii) The relevant qualified use; (iii) The items of real property shown on the estate tax return to be specially valued pursuant to the election (identified by schedule and item number); (iv) The fair market value of the real property to be specially valued under section 2032A and its value based on its qualified use (both values determined without regard to the adjustments provided by section 2032A(b)(3)(B)); (v) The adjusted value (as defined in section 2032A(b)(3)(B)) of all real property which is used in a qualified use and which passes from the decedent to a qualified heir and the adjusted value of all real property to be specially valued; (vi) The items of personal property shown on the estate tax return that pass from the decedent to a qualified heir and are used in a qualified use under section 2032A (identified by schedule and item number) and the total value of such personal property adjusted as provided under section 2032A(b)(3)(B); (vii) The adjusted value of" }, { "docid": "18930565", "title": "", "text": "17, 1987, petitioner was notified that it failed to qualify for the special use valuation provided under section 2032A, even after taking into account the two documents previously submitted by letter dated January 7, 1987. No further documentation was submitted by petitioner. In the statutory notice of deficiency, the Commissioner determined that petitioner was not entitled to the special use valuation under section 2032A because of petitioner’s failure to properly document and substantiate the section 2032A election. OPINION The value of property included in the gross estate of a decedent is usually the fair market value of the property interest as of the date of death of the decedent. Sec. 2031. Prior to 1976, there were no provisions in the Internal Revenue Code that permitted any other valuation. Section 2032A, which was adopted as part of the Tax Reform Act of 1976, provides an alternative means for valuing real property used in farming operations or other closely held businesses. Tax Reform Act of 1976, Pub. L. 94-455, sec. 2003(a), 90 Stat. 1856. The purpose in adopting section 2032A was to provide an alternative to “highest and best use” for valuing real property used in family farming operations or closely held businesses. Estate of Johnson v. Commissioner, 89 T.C. 127, 129 (1987); Estate of Coon v. Commissioner, 81 T.C. 602, 608 (1983). Under section 2032A(a)(1)(B), the executrix must elect this special use valuation on a Federal estate tax return. Sec. 2032A(d)(1); sec. 20.2032A-8, Estate Tax Regs. A notice of election must be filed with the Federal estate tax return setting forth 14 items of information. In addition, an agreement must be filed, signed by each person in being who has an interest in any property designated in such agreement, consenting to the application of an additional estate tax under subsection (c) with respect to such property. Sec. 2032A(d)(2). The estate must also meet a number of other conditions to be eligible for special use valuation. We must first decide whether a proper election has been filed. A section 2032A election need not be made as to all real property in the" }, { "docid": "18930593", "title": "", "text": "is not a case in which no election was attempted on a timely original Federal estate tax return and an amended return was filed after the due date of the original return, including extensions containing a sec. 2032A notice of election. Carmean v. United States, 4 Cl. Ct. 181 (1983); Estate of McCoy v. Commissioner, T.C. Memo. 1985-509, affd. 809 F.2d 333 (6th Cir. 1987); Estate of Williams v. Commissioner, T.C. Memo. 1984-178; Estate of Young v. Commissioner, T.C. Memo. 1983-686; Estate of Boyd v. Commissioner, T.C. Memo. 1983-316. We are aware of other decisions which generally hold that strict compliance with sec. 2032A is required to receive statutory relief. Estate of Cowser v. Commissioner, 736 F.2d 1168 (7th Cir. 1984), affg. 80 T.C. 783 (1983); Estate of Abell v. Commissioner, 83 T.C. 696 (1984); Estate of Coon v. Commissioner, 81 T.C. 602 (1983); Estate of Geiger v. Commissioner, 80 T.C. 484 (1983). We are unable to ascertain what tract of land Mr. Abercrombie was referring to when he referred to “our land.” However, for purposes of this analysis, it is not relevant which specific tract is referred to, as no evidence of comparable property was produced. This assumes that the executrix has not initially made an election under sec. 2032A(e)(7)(ii) to value the property under sec. 2032A(e)(8). If sec. 2032A(e)(8) is used for valuation purposes, none of the documentation requirements of sec. 2032A(e)(7)(A) would be required. Therefore, the only disputed issue remaining would be whether there was “material participation” by the decedent in the operation of the farm as required by sec. 2032A(b)(1)(C)(ii). We assume that this standard would have been met for purposes of this analysis only. We express no opinion as to whether petitioner “materially participated,” as our holding does not require us to reach this issue." }, { "docid": "1288124", "title": "", "text": "or a resident of the United States, and the subject property must be located in the United States. The real property must have been used as a farm or in a trade or business by the decedent or a member of the decedent’s family, with \"material participation” in the operation of the farm or the business by the decedent or a member of the decedent’s family. Real property qualifies for special use valuation only if it passes to a qualified heir, who must be a member of the decedent’s family. The ownership and use requirements must continue for 10 years after the decedent’s death to avoid recapture of part of the tax savings resulting from special use valuation. Sec. 2032A(c). These requirements all express the intent of Congress to limit this particular form of tax relief to what would generally be regarded as a family farm or business. See Estate of Geiger v. Commissioner, 80 T.C. 484 (1983); Estate of Cowser v. Commissioner, 80 T.C. 783 (1983), on appeal (7th Cir., July 12, 1983). The parties agree that the requirements of section 2032A other than the \"material participation” requirement of section 2032A(b)(l)(C)(ii) have been met. Thus, the sole issue for determination is whether the decedent or a member of her family materially participated in the operation of the farmland. Section 2032A(e)(6) provides, \"Material participation shall be determined in a manner similar to the manner used for purposes of paragraph (1) of section 1402(a) (relating to net earnings from self-employment). ” (Emphasis supplied.) On July 28, 1980, pursuant to authority granted by section 7805(a), the Secretary adopted interpretative regulations under section 2032A. Although such regulations were adopted after the date of decedent’s death, assuming their validity, these regulations are applicable to decedent’s estate. See Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129 (1936); sec. 7805(b). The pertinent portions of section 20.2032A-3, Estate Tax Regs., provide: Sec. 20.2032A-3. Material participation requirements for valuation of certain farm and closely-held business real property. (a) In general. * * * Whether the required material participation occurs is a factual determination, and the types of" }, { "docid": "11594929", "title": "", "text": "(Vol. 3) 755, 758.] If real property connected to but unrelated in use to the qualified real property to be specially valued does not qualify, personal property unconnected with the real property does not qualify. We believe that the history, purpose, and structure of section 2032A all support the conclusion that Congress contemplated that the 50-percent requirement would be met by a family farm or business comprised of both real and personal property and not by adding the value of unconnected personal property to the value of the family farm or business in which the qualified real property is used. Decision will be entered for the respondent. Unless otherwise indicated, all statutory references are to the Internal Revenue Code of 1954 as amended and in effect at the date of death. The decedent here died in 1977, and thus the statute examined would be the Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1520. However, in 1978 and 1981, Congress passed technical corrections and qualifications in the Revenue Act of 1978, Pub. L. 95-600, 92 Stat. 2763, and the Economic Recovery Tax Act of 1981, Pub. L. 97-34, 95 Stat. 172. These changes were made retroactive in certain instances to estates of decedents dying after Dec. 31, 1976. Pub. L. 97-34, sec. 421(b)(1), 95 Stat. 306. Although the changes made in the 1978 and 1981 Acts are of limited relevance to the precise question involved here, the statute is hereinafter quoted and discussed with the retroactive amendments, unless otherwise noted. In this respect, sec. 2032A serves the same purpose as the contemporaneously adopted sec. 6166, providing for installment payment of estate taxes. Sec. 6166(c) expressly provides a special rule permitting aggregation of interests in two or more closely held businesses. In adopting modifying amendments subsequent to passage of the Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1520, Congress consistently referred to \"real and personal” property as connected concepts. \"To qualify for the special use valuation rule, * * * the real property must have been owned by the decedent (or a member of his family)" }, { "docid": "18930592", "title": "", "text": "Act of 1984, Pub. L. 98-369, sec. 1025(b)(1), 98 Stat. 1030. The Internal Revenue Service issues an annual revenue ruling setting forth the effective interest rate for each of the 12 regional Federal Land Bank Districts. The effective interest rate for the Federal Land Bank District in which the respective property is located, for 1982, was 10.26 percent. Rev. Rui. 82-104, 1982-1 C.B. 129, 130. Petitioner has presented an utterly confusing picture as to which method of valuation is being elected. In the notice of election, petitioner merely states that án election is being made under sec. 2032A(e)(7). On brief, petitioner argues that sec. 2032A(e)(7)(A) valuation was elected, then contends that evidence was submitted to the Internal Revenue Service regarding net share rental under sec. 2032A(e)(7)(B). Petitioner then submits a formula based upon “average production” in bushels per acre and in price per bushel. Finally, petitioner contends that “every effort was made to value the land in accordance with the formula contained in [sec. 2032(e)(7)] (A).” Estate of Killion v. Commissioner, T.C. Memo. 1988-244. This is not a case in which no election was attempted on a timely original Federal estate tax return and an amended return was filed after the due date of the original return, including extensions containing a sec. 2032A notice of election. Carmean v. United States, 4 Cl. Ct. 181 (1983); Estate of McCoy v. Commissioner, T.C. Memo. 1985-509, affd. 809 F.2d 333 (6th Cir. 1987); Estate of Williams v. Commissioner, T.C. Memo. 1984-178; Estate of Young v. Commissioner, T.C. Memo. 1983-686; Estate of Boyd v. Commissioner, T.C. Memo. 1983-316. We are aware of other decisions which generally hold that strict compliance with sec. 2032A is required to receive statutory relief. Estate of Cowser v. Commissioner, 736 F.2d 1168 (7th Cir. 1984), affg. 80 T.C. 783 (1983); Estate of Abell v. Commissioner, 83 T.C. 696 (1984); Estate of Coon v. Commissioner, 81 T.C. 602 (1983); Estate of Geiger v. Commissioner, 80 T.C. 484 (1983). We are unable to ascertain what tract of land Mr. Abercrombie was referring to when he referred to “our land.” However, for" }, { "docid": "13093152", "title": "", "text": "be met: (1) the decedent must have been a citizen or resident of the United States; (2) the property, the value of which must exceed certain percentages of decedent’s gross and adjusted estate, must be located in the United States; (3) the property must pass to a qualified heir, who must be a member of the decedent’s family; (4) the decedent or a member of decedent’s family must materially participate in the operation of the farm or business in 5 of the 8 years preceding decedent’s death; and (5) the property must have been used for a quali fied use by the decedent or a member of decedent’s family at the date of decedent’s death. See I.R.C. § 2032A; see also Estate of Abell v. Commissioner, 83 T.C. 696, 699 (1984). In this case, the government concedes that Keefe has satisfied all the conditions for special use valuation other than the qualified use requirement. Thus, the question we must decide is whether the 330 acres of farmland was used for a qualified use by Keefe or a member of her family at the date of her death. As initially enacted, § 2032A(b)(l)(A)(i) required that the property, “on the date of the decedent’s death, was being used for a qualified use.” Section 2032A(b)(2), which provides that “the term ‘qualified use’ means the devotion of the property to ... (A) use as a farm for farming purposes, or (B) use in a trade or business other than the trade or business of farming,” affords special use valuation to both farms and other businesses. Section 421(b)(1) of the Economic Recovery Tax Act of 1981 (“ERTA”), Pub.L. No. 97-34, 95 Stat. 172, 306, amended § 2032A(b)(l) to require that the property, “on the date of decedent’s death, was being used for a qualified use by the decedent or a member of the decedent’s family.” Section 421(k)(5)(A) of ERTA made this amendment retroactively effective to the estates of decedents dying after December 31, 1976. See 95 Stat. at 314. The legislative history underlying the 1981 amendment suggests by negative implication that the qualified use requirement" }, { "docid": "10876992", "title": "", "text": "however, a cessation of qualified use occurs under section 2032A(c)(7) upon either a failure of material participation for a specified duration, or a failure of qualified use by the qualified heirs. In this case, such a failure of qualified use by the qualified heirs is clearly shown, is not cured by any \"material participation” by petitioners (Estate of Abell v. Commissioner, supra), and must give rise to the imposition of additional estate tax under section 2032A(c)(1)(B). To reflect the foregoing, Decisions will be entered under Rule 155. Respondent also determined additions to tax under sec. 6651(a)(1), as to each of the petitioners herein, but has conceded this issue. Such concessions were explained by respondent as follows: \"In each statutory notice of deficiency issued to the seven petitioners herein, respondent determined the full amount of the additional estate tax, or $95,088.14. Respondent should have determined one-seventh of the full amount of the additional estate tax against each of the seven petitioners, or $13,584.02.” All statutory references are to the Internal Revenue Code of 1954 as amended and in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, except as otherwise stated. For the estates of decedents dying after Dec. 31,1981, this period was amended to the present 10 years. Pub. L. 97-34, sec. 421(c)(1)(A), 95 Stat. 172, 307. A similar provision is now contained in sec. 2032A(c)(6). We need not decide whether the qualified heirs, through John R. as personal representative, were engaged in a trade or business, and therefore in a \"qualified use” under sec. 2032A(b)(2)(B), when they leased the farm to Droege Farms. Even if they were, it was not the trade or business of farming, which was the basis of the initial qualification. Sec. 2032A(c)(7). In support of this interpretation of Estate of Sherrod v. Commissioner, 82 T.C. 523 (1984), on appeal (11th Cir., Oct. 19, 1984), see Estate of Trueman v. United States, 6 Cl. Ct. 380 (1984), which was decided after filing of the initial briefs herein. Petitioners make much of our findings in Estate" }, { "docid": "5136651", "title": "", "text": "At decedent’s death, the property was operated as a farm by Harvey Williamson, decedent’s grandson and petitioner’s nephew, pursuant to a crop-share lease from decedent. On November 29, 1983, the personal representatives of decedent’s estate leased the property to Harvey Williamson under a lease beginning March 1, 1984, and ending February 28, 1985, for a fixed semiannual payment of $3,675 to be paid on or before April 1, 1984, and October 1, 1984. On September 12, 1984, petitioner executed a lease of the property to Harvey Williamson for the period starting March 1, 1985, through February 28, 1989, for a semiannual cash rental of $4,297.50 payable April 1 and October 1 of each year. As a general rule a decedent’s property is, for estate tax purposes, valued at its fair market value based on its highest and best use. Sec. 2031(a); sec. 20.2031-l(b), Estate Tax Regs. The valuation of property, which is used for farming or small business purposes, on the basis of its highest and best use rather than on the basis of its actual use may result in substantially higher estate taxes. In some cases, valuation of property at its highest and best use may require the property to be sold and the farm or small business to be liquidated to pay the estate taxes. To encourage the continued use of property for farming and other small business purposes, section 2032A was adopted as part of the Tax Reform Act of 1976, sec. 2003(a), Pub. L. 94-455, 90 Stat. 1856. H. Rept. 94-1380 (1976), 1976-3 C.B. (Vol. 3) 735, 755-756; S. Rept. 94-938 (Part 2) (1976), 1976-3 C.B. (Vol. 3) 643, 657; Estate of Sherrod v. Commissioner, 774 F.2d 1057, 1060-1062 (11th Cir. 1985), revg. on other grounds 82 T.C. 523 (1984); Mangels v. United States, 828 F.2d 1324, 1326 (8th Cir. 1987); Estate of Coon v. Commissioner, 81 T.C. 602, 607 (1983). Section 2032A reduces the estate tax imposed on property used for farming and small business purposes by permitting the estate to elect to value the property on the basis of income capitalization rather than on" }, { "docid": "18930566", "title": "", "text": "adopting section 2032A was to provide an alternative to “highest and best use” for valuing real property used in family farming operations or closely held businesses. Estate of Johnson v. Commissioner, 89 T.C. 127, 129 (1987); Estate of Coon v. Commissioner, 81 T.C. 602, 608 (1983). Under section 2032A(a)(1)(B), the executrix must elect this special use valuation on a Federal estate tax return. Sec. 2032A(d)(1); sec. 20.2032A-8, Estate Tax Regs. A notice of election must be filed with the Federal estate tax return setting forth 14 items of information. In addition, an agreement must be filed, signed by each person in being who has an interest in any property designated in such agreement, consenting to the application of an additional estate tax under subsection (c) with respect to such property. Sec. 2032A(d)(2). The estate must also meet a number of other conditions to be eligible for special use valuation. We must first decide whether a proper election has been filed. A section 2032A election need not be made as to all real property in the estate, but only sufficient property to satisfy the threshold requirements of section 2032A(b)(l). Sec. 20.2032A-8(a)(2), Estate Tax Regs. The election is to be made on the Federal estate tax return in the manner prescribed by the regulations. Sec. 2032A(d)(l). Section 1025 of the Deficit Reduction Act of 1984 retroactively amended section 2032A(d)(3) to provide that the Secretary shall prescribe procedures that give the executrix of the estate of a decedent dying after 1976 a reasonable time within which to cure defects in a section 2032A election. Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 1025(a), 98 Stat. 1030. In any case in which the executrix timely files an election in “substantial compliance” with the regulations but which does not contain the required information, the executrix will have a reasonable time, not to exceed 90 days after notification of such failures, to provide all of the information. Sec. 2032A(d)(3). Section 20.2032A-8(a)(3), Estate Tax Regs., delineates 14 items of information that petitioner must submit with the Federal estate tax return: (i) The decedent’s name and taxpayer" }, { "docid": "2530548", "title": "", "text": "contingent upon the subsequent determination of values meeting the requirements of section 2032A. Section 20.2032A-8(b), Estate Tax Regs., explicitly provides that “The protective election is to be made by a notice of election filed with a timely estate tax return stating that a protective election under section 20S2A is being made pending final determination of values.” (Emphasis supplied.) Nowhere on its return did petitioner state that an appraisal of the specially valued property was in progress or that it wished to file a protective election. Conclusion We have considered each of the arguments advanced by the parties. We hold that petitioner’s failure to attach a recapture agreement to its original return defeats its attempted election of section 2032A special use valuation. Because of our resolution of this first issue, we need not address the second issue presented for decision in this case. To reflect the concessions of the parties, Decision will be entered under Rule 155. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954 as amended and in effect at decedent’s date of death. The Economic Recovery Tax Act of 1981, Pub. L. 97-34, 95 Stat. 172, amended sec. 2032A to provide that a valid election shall be made on the decedent’s estate tax return, rather than by the due date of that return. Sec. 2032A as amended is applicable only to the estates of decedents dying after Dec. 31, 1981. Here, decedent died on Feb. 10, 1981. Sec. 20.2032A-8, Estate Tax Regs., does not reflect changes made by the Economic Recovery Tax Act of 1981, Pub. L. 97-34, 95 Stat. 172. Several cases stand for the general proposition that the strict requirements of sec. 2032A must be met in order for taxpayers to receive the statutory relief. Estate of Cowser v. Commissioner, 736 F.2d 1168 (7th Cir. 1984), affg. 80 T.C. 783 (1983); Estate of Abell v. Commissioner, 83 T.C. 696 (1984); Estate of Coon v. Commissioner, 81 T.C. 602 (1983); Estate of Geiger v. Commissioner, 80 T.C. 484 (1983). We have held that even reasonable cause does not excuse noncompliance with the" }, { "docid": "10876993", "title": "", "text": "and in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, except as otherwise stated. For the estates of decedents dying after Dec. 31,1981, this period was amended to the present 10 years. Pub. L. 97-34, sec. 421(c)(1)(A), 95 Stat. 172, 307. A similar provision is now contained in sec. 2032A(c)(6). We need not decide whether the qualified heirs, through John R. as personal representative, were engaged in a trade or business, and therefore in a \"qualified use” under sec. 2032A(b)(2)(B), when they leased the farm to Droege Farms. Even if they were, it was not the trade or business of farming, which was the basis of the initial qualification. Sec. 2032A(c)(7). In support of this interpretation of Estate of Sherrod v. Commissioner, 82 T.C. 523 (1984), on appeal (11th Cir., Oct. 19, 1984), see Estate of Trueman v. United States, 6 Cl. Ct. 380 (1984), which was decided after filing of the initial briefs herein. Petitioners make much of our findings in Estate of Sherrod v. Commissioner, supra, that the decedent and later his son negotiated annual rental agreements, periodically inspected the timberland and contacted tenants and adjoining landowners, and paid local taxes on the acreage there in issue. We cannot agree with petitioners, however, that such activities formed the basis for our conclusion in that case that the use of the property was a qualified use under sec. 2032A(b)(2). Rather, the cited findings related to our further conclusion that there was \"material participation,” within the meaning of sec. 2032A(b)(1)(C), a separate requirement under sec. 2032A (see Estate of Coon v. Commissioner, 81 T.C. 602, 606 (1983)), and one as to which there is no dispute in the instant case. See Estate of Sherrod v. Commissioner, supra at 534-535. See also Estate of Abell v. Commissioner, 83 T.C. 696 (1984). For the year here in issue, this was a 15-year period. Petitioners make no claim under such section, apparently because of their mistaken belief that the section is not to be retroactively applied." }, { "docid": "5136652", "title": "", "text": "actual use may result in substantially higher estate taxes. In some cases, valuation of property at its highest and best use may require the property to be sold and the farm or small business to be liquidated to pay the estate taxes. To encourage the continued use of property for farming and other small business purposes, section 2032A was adopted as part of the Tax Reform Act of 1976, sec. 2003(a), Pub. L. 94-455, 90 Stat. 1856. H. Rept. 94-1380 (1976), 1976-3 C.B. (Vol. 3) 735, 755-756; S. Rept. 94-938 (Part 2) (1976), 1976-3 C.B. (Vol. 3) 643, 657; Estate of Sherrod v. Commissioner, 774 F.2d 1057, 1060-1062 (11th Cir. 1985), revg. on other grounds 82 T.C. 523 (1984); Mangels v. United States, 828 F.2d 1324, 1326 (8th Cir. 1987); Estate of Coon v. Commissioner, 81 T.C. 602, 607 (1983). Section 2032A reduces the estate tax imposed on property used for farming and small business purposes by permitting the estate to elect to value the property on the basis of income capitalization rather than on the basis of highest and best use. Sec. 2032A(e)(7); Estate of Heffley v. Commissioner, 89 T.C. 265, 271 (1987). To qualify for this election, section 2032A requires that the property to be specially valued satisfy numerous conditions at the time of the decedent’s death. See, e.g., Estate of Abell v. Commissioner, 83 T.C. 696, 699 (1984). The parties have stipulated that decedent’s estate met those pre-death conditions and properly made the section 2032A election. In enacting the special use valuation provisions, Congress recognized that an estate’s beneficiaries would enjoy an unwarranted windfall if they should sell the property within a short time or if they should fail to continue to use the property for farming or small business purposes, at least for a reasonable period of time after the decedent’s death. To guard against this windfall, section 2032A(c)(l) imposes an additional tax, sometimes referred to as the recapture tax, which applies in the case of an early disposition of qualified real property to a nonfamily member or an early cessation of the “qualified use.” H." }, { "docid": "2530549", "title": "", "text": "at decedent’s date of death. The Economic Recovery Tax Act of 1981, Pub. L. 97-34, 95 Stat. 172, amended sec. 2032A to provide that a valid election shall be made on the decedent’s estate tax return, rather than by the due date of that return. Sec. 2032A as amended is applicable only to the estates of decedents dying after Dec. 31, 1981. Here, decedent died on Feb. 10, 1981. Sec. 20.2032A-8, Estate Tax Regs., does not reflect changes made by the Economic Recovery Tax Act of 1981, Pub. L. 97-34, 95 Stat. 172. Several cases stand for the general proposition that the strict requirements of sec. 2032A must be met in order for taxpayers to receive the statutory relief. Estate of Cowser v. Commissioner, 736 F.2d 1168 (7th Cir. 1984), affg. 80 T.C. 783 (1983); Estate of Abell v. Commissioner, 83 T.C. 696 (1984); Estate of Coon v. Commissioner, 81 T.C. 602 (1983); Estate of Geiger v. Commissioner, 80 T.C. 484 (1983). We have held that even reasonable cause does not excuse noncompliance with the sec. 2032A filing requirements. Estate of Williams v. Commissioner, T.C. Memo. 1984-178; Estate of Boyd v. Commissioner, T.C. Memo. 1983-316." }, { "docid": "18930591", "title": "", "text": "set forth in the statute to avoid recapture of part of the tax savings resulting from special use valuation. Sec. 2032A(c). In addition to the requirements listed above, sec. 2032A includes requirements regarding the makeup of the estate, as set forth in sec. 2032A(b)(1)(A) and (B). These percentage requirements limit tax relief to those situations where the family farm or business is a major asset, in terms of value, in the decedent’s estate. We need not address this issue for this information was sufficiently set forth in petitioner’s notice of election. Petitioner erroneously contends on brief that because the passage of sec. 1025(a) of the Deficit Reduction Act of 1984 was subsequent to the date of the amended Federal estate tax return, the 90-day requirement has no application because it was not in existence at the time of the filing or auditing of the amended Federal estate tax return. Petitioner has failed to take notice of the fact that sec. 1025(a) was made retroactive to apply to decedents dying after Dec. 31, 1976. Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 1025(b)(1), 98 Stat. 1030. The Internal Revenue Service issues an annual revenue ruling setting forth the effective interest rate for each of the 12 regional Federal Land Bank Districts. The effective interest rate for the Federal Land Bank District in which the respective property is located, for 1982, was 10.26 percent. Rev. Rui. 82-104, 1982-1 C.B. 129, 130. Petitioner has presented an utterly confusing picture as to which method of valuation is being elected. In the notice of election, petitioner merely states that án election is being made under sec. 2032A(e)(7). On brief, petitioner argues that sec. 2032A(e)(7)(A) valuation was elected, then contends that evidence was submitted to the Internal Revenue Service regarding net share rental under sec. 2032A(e)(7)(B). Petitioner then submits a formula based upon “average production” in bushels per acre and in price per bushel. Finally, petitioner contends that “every effort was made to value the land in accordance with the formula contained in [sec. 2032(e)(7)] (A).” Estate of Killion v. Commissioner, T.C. Memo. 1988-244. This" } ]

[ { "docid": "23396535", "title": "", "text": "more than untrue in the sense that the statement must be made “with an intent to deceive or mislead,” an interpretation offered by defendant both on argument for his motion for judgment of acquittal and through his proposed jury instructions. Despite the fact that the language of the statute is written in the disjunctive, the appellant urges that the words “false or fraudulent” should be read “false and fraudulent” or, to the same purpose, that “false” be given the restrictive definition set out in his proposed jury instruction in order to save the words “or fraudulent” from being surplusage. 1. It is a familiar rule of statutory construction that Congress is presumed to have used words according to their ordinary meaning, unless a different signification is clearly indicated. Avery v. C. I. R., 292 U.S. 210, 214, 54 S.Ct. 674, 78 L.Ed. 1216 (1934). Though the first dictionary meaning of “false” corresponds with the district judge’s charge, it is important to note that the word, as judicially construed, means much more in other statutes. For example, “false” in section 14(c)(2) of the Bankruptcy Act, 11 U.S.C. § 32(c)(2), which creates an objection to the discharge of a bankrupt where he makes a “materially false statement in writing respecting his financial condition,” has been interpreted to mean “more than erroneous or untrue” and to “[import] an intention to deceive.” 1A Collier on Bankruptcy § 14.40 (14th ed.). See Third Nat’l Bank v. Schatten, 81 F.2d 538 (6th Cir. 1936); In re Rosenfeld, 262 F. 876 (2d Cir. 1919); Doyle v. First Nat’l Bank of Baltimore, 231 F. 649 (4th Cir. 1916). And the use of “falsely” in section 346(a) of the Nationality Act of 1940, 8 U.S.C. § 746 (now incorporated into Chapter 18 at sections 911 and 1015), to make criminal the act of knowingly and falsely representing oneself to be a citizen of the United States was interpreted as follows: “In law this word usually means something more than untrue; it [false] means something designedly untrue and deceitful and implies an intention to perpetrate some treachery or fraud.” United" } ]

[ { "docid": "2968263", "title": "", "text": "111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (noting that “legislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes”); Milanovich v. United States, 365 U.S. 551, 553-54, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961) (holding that a defendant cannot be separately convicted under both prongs of 18 U.S.C. § 641, which prohibits embezzling or stealing from the United States or receiving such stolen property); United States v. Yeaman, 194 F.3d 442, 453 (3d Cir.1999) (holding that a statute criminalizing a “device, scheme or artifice to defraud, an obtaining of money or property by material misrepresentation, or a transaction that operates as a fraud or deceit on a purchaser” creates single offense (internal quotation marks omitted)); United States v. Navarro, 145 F.3d 580, 589-90 (3d Cir.1998) (holding that federal money laundering statute creates a single offense that can be committed in three alternate ways). We believe that, under a plain and natural reading of its text, § 371 creates one offense, not two distinct offenses. First, Congress’ use of the word “either” before “to commit any offense” and “to defraud” demonstrates that these objects provide alternative means of committing a single type of offense rather than creating separate offenses. Indeed, Merriam-Webster defines “either” as: “the one or the other of the two.” Webster’s Third New International Dictionary 728 (3d ed.1993). The dictionary also notes that “either” is “used as a function word before ... or to indicate that what immediately follows is the first of two or more alternatives that are equally applicable.” Id. Next, in cases “[w]hen the term ‘or’ is used, it is presumed to be used in the disjunctive sense unless the legislative intent is clearly contrary.” United States v. O’Driscoll, 761 F.2d 589, 597 (10th Cir. 1985). Importantly, “in penal statutes, the word ‘or’ is seldom used other than as a disjunctive.” Id. at 598 (citing 21 Am. Jur.2d, Criminal Law, § 540). Merriam-Webster defines “either-or” as “an unavoidable choice or exclusive division between only two alternatives.” Webster’s Third New International Dictionary 728 (3d ed.1993). Finally, these alternatives come" }, { "docid": "21429201", "title": "", "text": "otherwise defining it, the term must generally be given that meaning); United States v. Loera, 923 F.2d 725, 727-28 (9th Cir.1991) (“[t]he common-law meaning of a common-law term used in a federal criminal statute provides a source from which statutory precision may be derived”) (citation omitted); United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir.1991) (“Because ‘assault’ is not defined in the statute, we have construed it to be equivalent to common law assault.”); United States v. Gullett, 75 F.3d 941, 947 (4th Cir.), cert. denied, — U.S. -, 117 S.Ct. 134, 136 L.Ed.2d 83 (1996) (“[I]f Congress uses a common-law term in a federal criminal statute without defining it, we must presume that Congress adopted the common-law definition of that term.”). At common law, “[a]rson is a crime of general, rather than specific intent and the requirement that the defendant act ‘wilfully and maliciously’ does not mean that the defendant must have an actual subjective purpose that the act he does intentionally shall produce either (1) setting a fire or burning of the structure or (2) damage to or destruction of said structure.” Dean v. State, 668 P.2d 639, 643 (Wyo.1983); State v. Scott, 118 Ariz. 383, 576 P.2d 1383, 1385 (1978); see also State v. O’Farrell, 355 A.2d 396, 398 (Me.1976); State v. Bell, 113 Ariz. 279, 551 P.2d 548, 550 (1976); United States v. Acevedo-Velez, 17 M.J. 1, 2 (C.M.A.1983); 6A C.J.S. Arson § 6, 223 (1975). “To be a willful act, the setting of the fire must be a conscious, intentional act done knowingly and according to a purpose, as distinguished from a fire that was started by accident or defendant’s involuntary act.” 5 Am.Jur.2d Arson and Related Offenses § 7 (1995); see also Isaac v. State, 645 So.2d 903, 908 (Miss.1994) (citing Curtis’ Treatise on the Law of Arson); Dean, 668 P.2d at 642; Linehan v. State, 442 So.2d 244, 247 (Fla.Dist.Ct.App.1983); Scott, 576 P.2d at 1385; State v. Nelson, 17 Wash.App. 66, 561 P.2d 1093, 1096 (1977). “ ‘Maliciously’ means that state of mind which actuates conduct injurious to others without lawful" }, { "docid": "7112702", "title": "", "text": "water, or sludge or emulsion beneath the surface of water, constitutes a quantity as may be harmful. (See, generally, Dkt. 92-1, Motion at 17-18; Dkt. 115, Defendant’s Suppl. at 1-2). Second, 40 C.F.R. § 110.3(b) states that an oil discharge may be harmful if it results in “a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines.” (emphasis added). The use of the word “or” “is almost always disjunctive, that is, the words it connects are to be given separate meanings.” Loughrin v. U.S., — U.S. -, 134 S.Ct. 2384, 2390, 189 L.Ed.2d 411 (2014) (internal quotation marks omitted); Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975) (“As a general rule, the use of a disjunctive in a statute indicates alternatives and requires that they be treated separately.”); Coal. for Clean Air v. S. Cal. Edison Co., 971 F.2d 219, 225 (9th Cir. 1992), cert. denied, 507 U.S. 950, 113 S.Ct. 1361, 122 L.Ed.2d 740 (1993) (the use of the word “or” by Congress between “two separate triggering events” showed that Congress clearly intended that either one of the events would trigger the “EPA’s obligation to promulgate” a plan). Here, the use of the word “or” means that the presence of a film, sheen, discoloration, sludge, or emulsion on an adjoining shoreline is sufficient to constitute quantities “as may be harmful.” See In re Pacific Lumber Co., 584 F.3d 229, 245 (5th Cir. 2009) (“This court has subscribed to the obvious proposition that because the three subsections of [the statute] are joined by the disjunctive ‘or,’ they are alternatives.”). In other words, the presence of a film, sheen, discoloration, sludge, or emulsion on or beneath the surface of water is not the only manner in which an oil discharge may be harmful under 40 C.F.R. § 110.3. At best, the evidence HVI relies on, (see Dkt. 92-3, SUF at D1-D14) merely establishes that Palmer Road Creek, Cat Canyon Creek, and Spring Canyon Tributary" }, { "docid": "23032883", "title": "", "text": "unaltered by the 1976 amendments and which indicate that response to treatment remains a factor that is to be considered by the Parole Commission in setting release dates. A cardinal rule of statutory interpretation is that repeals of legislation by implication are disfavored. Blanchette v. Connecticut General Ins. Corps., 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974); Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); Amell v. United States, 384 U.S. 158, 86 S.Ct. 1384, 16 L.Ed.2d 445 (1966); Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976); Plains Electric Generation and Transmission Cooperative, Inc. v. Pueblo of Laguna, 542 F.2d 1375, 1376 (10th Cir. 1976). In a recent case, Watt v. Alaska,-U.S.-, at p. -, 101 S.Ct. 1673, at p. 1678, 68 L.Ed.2d 80 (1981) the Supreme Court stated: [Rjepeals by implication are not favored, Morton v. Mancari, 417 U.S. 535, 549 [94 S.Ct. 2474, 2482, 41 L.Ed.2d 290] (1974), quoting Posadas v. Nat’l City Bank, 296 U.S. 497, 503 [56 S.Ct. 349, 352, 80 L.Ed. 351] (1936). “The intention of the legislature to repeal must be ‘clear and manifest.’ ” United States v. Borden Co., 308 U.S. 188, 198 [60 S.Ct. 182, 188, 84 L.Ed. 181] (1939), quoting Red Rock v. Henry, 106 U.S. 596, 602 [1 S.Ct. 434, 27 L.Ed. 251] (1882). We must read the statutes to give effect to each if we can do so while preserving their sense and purpose. Mancari, supra [417 U.S.], at 551 [94 S.Ct. at 2483]; see Haggar Co. v. Helvering, 308 U.S. 389, 394 [60 S.Ct. 337, 339, 84 L.Ed. 340] (1940). “In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 190, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978), quoting Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974); In re Bear River Drainage District, 267 F.2d 849," }, { "docid": "16653928", "title": "", "text": "there was a need for surprise. In fact, the Stoddard Lumber inspection was a “general schedule inspection” under OSHA rather that an “unscheduled inspection,” which is conducted in response to reports of hazardous working conditions. Id. at 985-86. It is the latter type of inspection that would usually require surprise to be effective. As in this case, the inspector in Stoddard Lumber had already sought entry before obtaining the warrant. There was no indication that surprise was necessary. Stoddard Lumber thus stands for the proposition that the agency may obtain its warrants ex parte even when surprise is not necessary. AFFIRMED. . Moreover, section 114(c), which prohibits the disclosure of confidential information gathered in the course of inspections made pursuant to section 114(a)(2), authorizes the Administrator to make an exception and disclose the information to “other officers, employees, or authorized representatives of the United States concerned with carrying out this chapter ...” Congress’ use of the disjunctive makes clear that each phrase was intended to encompass a separate category of individuals. This court has previously recognized that “[a]s a general rule, the use of disjunctive in a statute indicates alternatives and requires that they be treated separately.” Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975). See also Reiter v. Sonotone Corp., 442 U.S. 330, 338-39, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). To adopt the interpretation urged by appellant and accepted by the Tenth Circuit would require this court to ignore the disjunctive and dismiss the independent significance it confers upon the phrase “authorized representatives.” To maintain consistency within section 114 of the Act, the term “authorized representatives” used in section 114(a)(2) should be given the same meaning that Congress clearly intended in section 114(c). . Furthermore, an administrative interpretation deserves particular deference where Congress fails to take advantage of an opportunity to alter it. Saxbe v. Bustos, 419 U.S. 65, 77-78, 95 S.Ct. 272, 280, 42 L.Ed.2d 231 (1974); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 313-15, 53 S.Ct. 350, 357-58, 77 L.Ed. 796 (1933). In the 1977 Amendments to the Clean Air" }, { "docid": "549889", "title": "", "text": "land lies, unless a contrary congressional intent is shown, e.g., Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 88, 43 S.Ct. 60, 64, 67 L.Ed. 140 (1922); Oklahoma v. Texas, 258 U.S. 574, 594-95, 42 S.Ct. 406, 414, 66 L.Ed. 771 (1922) (involving disposal of Indian lands under guardianship of United States). Here, there is no indication as to Congress’s intent regarding the appropriate law to apply. Accordingly, where federal law is of no avail we are guided by Idaho law. Idaho law governing the construction of deeds dictates that a court interpreting a deed should be guided by the intention of the parties, in this case the United States and the State of Idaho. Gardner v. Fliegel, 92 Idaho 767, 450 P.2d 990 (1969). The intention of the parties is to be gleaned from the instrument itself, if possible. However, if the language in the deed is ambiguous, the intention must be determined from extrinsic evidence. Id. 450 P.2d at 994; Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209, 213 (1952); McLean v. Row, 56 Idaho 646, 57 P.2d 689, 691 (1936). Accordingly, in construing the phrase “to be ... held, used, and maintained solely as a public park ” we must attempt to give effect to the intent of the United States, as expressed by Congress. E. g., Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975). Where, as here, Congress has left a term undefined, it is presumed that the words were used in their ordinary, commonly understood meaning. E.g., Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”); see also, e.g., City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680, 684 (1956). Since the term “public park” is subject to a host of various interpretations it is appropriate in this endeavor to look to extrinsic evidence relevant to the meaning of the phrase “public park,”" }, { "docid": "4775805", "title": "", "text": "is minor and not decisive or controlling as an element in the interpretation of a statute. 73 Am.Jur.2d § 216, P. 410. As to the use of the word “or” in the subsection, the language from Wilcox v. Warren Construction Co., 95 Or. 125, 186 P. 13, 18-19, is instructive: “It is common learning as a matter of grammar that when in an enumeration of persons or things the conjunction is placed immediately before the last of the series the same connective is understood between the previous members. If the disjunctive conjunction ‘or’ is used, the various members of the sentence are taken separately, while if ‘and’ is used they are to be considered jointly. For instance, deeds are to be acknowledged ‘before any judge of the Supreme Court, County Judge, Justice of the Peace, or Notary Public’. L.O.L. § 7109. It is manifest that the officers named are to be taken separately, and that the acknowledgment is not to be taken before all of them. The service of one is sufficient. Other illustrations will readily occur to the mind. ‘Or’ is defined as a ‘disjunctive often with either or whether as a correlative, used to introduce a word or phrase expressing an object or action, the acceptance of which excludes all the other objects or actions mentioned’. Standard Dictionary, 1733.” Lest one believes the 1733 Standard Dictionary is out of date, Black’s Law Dictionary, 4th Ed. (1951), P. 1246, cited in Cabrera, gives the same definition by stating “or” “is a disjunctive particle used to express an alternative or to give a choice of one among two or more things.” Finally, 73 Am.Jur.2d, § 214, pp. 419-420 states: “In its elementary sense the word ‘or’ as used in a statute, is a disjunctive particle indicating that the various members of the sentence are to be taken separately. If ‘and’ is used, such portions of the sentence are to be considered jointly. When, in the enumeration of persons or things in a statute, the conjunction is placed immediately before the last of the series, the same connective is understood between" }, { "docid": "4120916", "title": "", "text": "a model of legislative clarity; defendants do not claim that it is. Its purpose, nonetheless, is evident. It prohibits the sale or gift of the items covered to any minor; and it appears from the evidence that when it was adopted, those who drafted it, proposed it, and voted on it, intended it as a means of coping with the social problem of drug abuse in this small community located within the greater Chicago metropolitan area. The operative words are not defined, but there is no indication that the crucial words “items,” “effect,” “paraphernalia,” “accessory,” or “thing” are to be given a technical meaning; they are, in fact, ordinary words. In the construction of statutes and ordinances, absent some established technical definition, the words used must be given their common ordinary meaning, Sheehan v. Scott, 520 F.2d 825, 829 (7th Cir. 1975), unless the clear intent of the enacting body requires otherwise. Schreibman v. L. I. Combs & Sons, Inc., 337 F.2d 410, 412 (7th Cir. 1964); 82 C.J.S. Statutes § 329; 73 Am.Jur.2d Statutes § 206. There is no guidance from court decisions, no accumulation of jurisprudence, on the actual meaning of the crucial words of this ordinance, particularly in the context of what is now known as drug paraphernalia enactments. See Note, Paraphernalia for Marijuana and Hashish Use: Possession Statutes and Indiana’s Pipe Dream, 10 Val. Univ.L.Rev. 353 (1976). However, reference can be made to a dictionary. See Heyen v. Willis, 94 Ill.App.2d 290, 236 N.E.2d 580 (1968); Nomura (America) Corp. v. United States, 299 F.Supp. 535 (Cust.Ct. 1969), aff’d, 435 F.2d 1319, 58 CCPA 82 (1969); 73 Am.Jur.2d Statutes § 223. When this is done Webster’s Third New International Dictionary (Unabridged ed. 1971) tells us at p. 1203, that “item” (the ordinance uses the plural) means “something produced by manufacturing or manual labor or in some other way: a piece of goods . . .”; at p. 724, that “effect” means “movable property: goods (such as clothing, jewelry, and other personal property)”; at p. 11, that “accessory” means “an object or device that is not essential in" }, { "docid": "2968264", "title": "", "text": "of the word “either” before “to commit any offense” and “to defraud” demonstrates that these objects provide alternative means of committing a single type of offense rather than creating separate offenses. Indeed, Merriam-Webster defines “either” as: “the one or the other of the two.” Webster’s Third New International Dictionary 728 (3d ed.1993). The dictionary also notes that “either” is “used as a function word before ... or to indicate that what immediately follows is the first of two or more alternatives that are equally applicable.” Id. Next, in cases “[w]hen the term ‘or’ is used, it is presumed to be used in the disjunctive sense unless the legislative intent is clearly contrary.” United States v. O’Driscoll, 761 F.2d 589, 597 (10th Cir. 1985). Importantly, “in penal statutes, the word ‘or’ is seldom used other than as a disjunctive.” Id. at 598 (citing 21 Am. Jur.2d, Criminal Law, § 540). Merriam-Webster defines “either-or” as “an unavoidable choice or exclusive division between only two alternatives.” Webster’s Third New International Dictionary 728 (3d ed.1993). Finally, these alternatives come in the middle of the sentence, and are followed by the description of an additional element, i.e., the overt act requirement, signaling that objects are alternative means of violating § 371. Thus, the plain and literal meaning of the words “either ... or” suggests that Congress enacted § 371 intending to create a single, criminal offense that may be committed in two alternative ways. By endorsing this interpretation of the phrase “either ... or,” we join several other circuits which have also concluded that Congress’ use of disjunctive language creates alternative ways of violating a statute. For example, relying on the “either ... or” construction of § 371, the Eleventh Circuit reached the same conclusion in Hannas, noting that because the conspiracy statute is “written in the disjunctive [it] should be interpreted as establishing two alternative means of committing a violation.” 974 F.2d at 1266; see also Foutz v. United States, 72 F.3d 802, 805 (10th Cir.1995) (noting that as a general rule the use of a disjunctive in a statute indicates that alternatives were" }, { "docid": "5685689", "title": "", "text": "other state or foreign jurisdiction”) means the statute does not apply to- a child who is adopted by one person in a same-sex couple and then, in another proceeding, by the second person in the couple. OSDH thus argues that the amendment does not apply to the Doels because they utilized such a second parent adoption procedure. When we are called upon to interpret state law, we “must look to rulings of the highest state court, and if no such rulings exist, must endeavor to predict how the high court would rule.” Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d 893, 899 (10th Cir.2006). The adoption amendment has not been interpreted by Oklahoma courts in any published case. Therefore, “[w]e interpret state laws according to state rules of statutory construction.” Ward v. Utah, 398 F.3d 1239, 1248 (10th Cir.2005). Oklahoma courts construe statutes according to the legislative intent as expressed in both the language and purpose of the statute: In determining whether a statute applies to a given set of facts, we focus on legislative intent which controls statutory interpretation. Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each. The Court presumes that the Legislature expressed its intent and that it intended what it expressed. Statutes are interpreted to attain that purpose and end championing the broad public policy purposes underlying them. Only where the legislative intent cannot be ascertained from the statutory, language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed. Keating v. Edmondson, 37 P.3d 882, 886 (Okla.2001) (footnotes omitted). “[T]he cardinal rule is to begin with consideration of the language used.” Haney v. Oklahoma, 850 P.2d 1087, 1089 (Okla.1993). “The words, phrases and sentences of a statute are to be understood as used, not in any abstract sense. Words used in a part of a statute must be interpreted in light of their context and understood in a sense which best harmonizes with all other parts of the statute.” In re Estate" }, { "docid": "7547835", "title": "", "text": "States, 92 U. S.App.D.C. 96, 202 F.2d 366 (D.C.Cir.1953) (where consortium damages to the wife were denied because the laws of Maryland, where the injury occurred, did not allow such damages). See also Wright, The Federal Tort Claims Act 74-75 (1957). . See generally 27 Am.Jur. Husband and Wife §§ 499-513 (1954); Prosser, Torts § 104 (2d Ed. 1955); Anno., 23 A.L.R.2d 1378 (1952); Anno., 133 A.L.R. 1156 (1941); cf. Hitaffer v. Argonne Company, 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366 (1950) cert. den. 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950), overruled on a different point, Smither & Company, Inc. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220 (1957). . It was said in Williams v. Peterson, 86 Utah 526, 46 P.2d 674 (1935), that: “In this state by constitutional provisions and statutory enactments the common-law disabilities of married women have been abrogated, and married women are in all respects, with reference to their separate property and power to contract, on the same footing as other persons.” During the constitutional convention it was declared by Mr. Howard: “We have in this convention been working hard to give women equal rights with men and we have done so up to the present time and I propose to'- giving them the same rights in this. (The motions he spoke of related to the inclusion of the word “purchase” in the provision concerning married women and was carried.) Proceedings Const. Convention (1895) Utah, Vol. II, p. 1782. . Utah Code Annotated 1953 § 30-2-2; R.S.1898 & Compiled Laws 1907 II 1199; Compiled Laws 1917 If 2984; Revised Statutes 1933 and C.1943, 40-2-2. . Utah Code Annotated 1953, § 30-2-4; R.S.1898 & C.L.1907, § 1201; C.L.1917, § 2986; R.S.1933 & C. 1943, 40-2-4. . For a concise review of these considerations and related judicial decisions see “Judicial Treatment of Negligent Invasion of Consortium” 61 Columbia L.Rev. 1341-1357 (1961). . West v. American Telephone & Telegraph Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Criqui v. Blaw-Knox Corporation, 318 F.2d 811 (10th Cir. 1963); Fisher v. Firemen’s" }, { "docid": "16653929", "title": "", "text": "recognized that “[a]s a general rule, the use of disjunctive in a statute indicates alternatives and requires that they be treated separately.” Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975). See also Reiter v. Sonotone Corp., 442 U.S. 330, 338-39, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). To adopt the interpretation urged by appellant and accepted by the Tenth Circuit would require this court to ignore the disjunctive and dismiss the independent significance it confers upon the phrase “authorized representatives.” To maintain consistency within section 114 of the Act, the term “authorized representatives” used in section 114(a)(2) should be given the same meaning that Congress clearly intended in section 114(c). . Furthermore, an administrative interpretation deserves particular deference where Congress fails to take advantage of an opportunity to alter it. Saxbe v. Bustos, 419 U.S. 65, 77-78, 95 S.Ct. 272, 280, 42 L.Ed.2d 231 (1974); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 313-15, 53 S.Ct. 350, 357-58, 77 L.Ed. 796 (1933). In the 1977 Amendments to the Clean Air Act Congress included an amendment to section 114 (not relevant to this discussion). While considering amendments to the section Congress made no effort to indicate any disagreement with EPA’s construction of authorized representatives to include private contractors." }, { "docid": "11727529", "title": "", "text": "he did not exercise any discretion over the plans’ assets — he was under strict instructions to use the plans’ funds to purchase insurance coverage for the plans’ members. Therefore, Day concludes, he cannot qualify as a “fiduciary” under ERISA. We reject Day’s interpretation of § 1002(21)(A)(i) because it does violence to the statutory text. The plain language of that text connects the two classes of “fiduciaries” with the disjunctive “or” — not the conjunctive “and.” See, e.g., Garcia v. United States, 469 U.S. 70, 73, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (“Canons of construction indicate that terms connected in the disjunctive in this manner be given separate meanings.”); 1A Norman J. Singer, Statutes And Statutory Construction § 21.14 at 181-82 (6th ed.2002) (“courts presume that ‘or’ is used in a statute dis-junctively unless there is a clear legislative intent to the contrary”); see also Amerioan Heritage Dictionary Of The English Language 873 (4th ed.2000) (defining “or” as “[u]sed to indicate ... [a]n alternative ...” (emphasis added)); Merriam-Webster’s Collegiate Dictionary 817 (10th ed.1996) (defining “or” as “a function word [used] to indicate an alternative ” (emphasis added)); VII Oxford English Dictionary 166 (1933) (defining “or” as “[a] particle co-ordinating two (or more) words, phrases, or clauses, between which there is an alternative” (emphasis added)). Congress plainly framed § 1002(21)(A)(i) in the alternative, and it further bifurcated the subsection with the parallel inclusion of the verb “exercises” at the beginning of both the discretionary and disposition clauses. We therefore cannot commingle the textually distinct provisions of the two clauses. See Overseas Educ. Ass’n v. FLRA, 876 F.2d 960, 975 (D.C.Cir.1989) (Buckley, J., concurring) (“This court has no authority to engraft restrictions onto the statute that its drafters did not choose to use, and that the members voting it into law never had the chance to consider.”). Our conclusion is further buttressed by the structure of the statute. The “discretion” requirement — which is repeated twice in the discretionary clause — is conspicuously omitted altogether from the disposition clause. Instead, in order to qualify as a “fiduciary” with respect to a" }, { "docid": "10079065", "title": "", "text": "of the word “members” early in the sentence in reference to the Fort Belk-nap Community, coupled with its later appearance in the blood quantum proviso, could only mean that Congress designed the restriction to apply to both subsections (a) and (b). He argues that if Congress had intended the restriction to apply only to subsection (b), it would have used the word “person” rather than “member” to limit the restriction accordingly. Settled rules governing statutory construction compel us to reject this leapfrog interpretation. As a general rule, the use of a disjunctive in a statute indicates alternatives and requires that they be treated separately. See, e. g., Quindlen v. Prudential Insurance Company of America, 482 F.2d 876 (5th Cir. 1973); In re Rice, 83 U.S.App.D.C. 26, 165 F.2d 617 (1947); 82 C.J.S. Statutes § 335 (1953). Here the disjunctive form “or” sets off subsection (a) from (b) and fashions two categories of eligibility. Next, under the “doctrine of the last antecedent,” qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to and including others more remote. See, e. g., Quindlen, supra; Mandel Bros, v. FTC, 254 F.2d 18 (7th Cir. 1958), rev’d on other grounds, 359 U.S. 385, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959); United States ex rel. Santarelli v. Hughes, 116 F.2d 613 (3d Cir. 1940); 82 C.J.S. Statutes § 335 (1953). We see no reason to deviate from these common guidelines and the interpretation of Section 2 that they command. Accordingly, we agree with the district court in that the subsection (b) blood restriction does not apply to subsection (a) recipients. There is little legislative history to aid in the interpretation of Section 2. However, considering what scant history is available, all that is evident to this court is that Congress was absolutely intent on preventing double recovery in tribal awards of a mixed blood Gros Ventre-Assiniboine Indian, H.R.Rep.No. 92-893, 92nd Cong., 2d Sess. (1972). Our construction of the statute in no way disturbs this congressional purpose. No members of the Azure" }, { "docid": "4298807", "title": "", "text": "difference between reference to “applicants” for “grants” in the Omnibus Act and “claimants” for “benefits” under PSOBA. The court attributed the use of these different terms to mere carelessness on the part of Congress since the legislative history did not reveal intention to “[ajttach discrete meanings.” 637 F.2d at 1260. We disagree. It is our view that when Congress uses words in a statute without defining them, and those words have a judicially settled meaning, it is presumed that Congress intended them to have that meaning in the statute. Hardy Salt Company v. Southern Pacific Trans. Co., 501 F.2d 1156, 1168 (10th Cir.1974), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). This same rationale was well expressed in Wydra: [T]he petitioner’s reading of “grant application” also conflicts with the consistent use, both in PSOBA and in the LEAA regulations passed pursuant to the PSO-BA, of the terms “benefit” rather than “grant,” “claimant” or “recipient,” and “claim” rather than “application.” Both the Lankford and Elaine Russell decisions emphasized the same discrepancy between the terms in the PSOBA on which jurisdiction was purportedly based, invoking the common sense principle of statutory construction that “clear use of different terminology within a body of legislation is evidence of an intentional differentiation.” Lankford, 620 F.2d at 36; accord, Elaine Russell, 637 F.2d at 356. (Footnotes omitted.) Wydra, supra, 722 F.2d at 838-39. Finally, the Ninth Circuit reasoned that § 3758(a), read in conjunction with § 3759, authorizes review in the courts of appeal independent of subsections 3758(b) and (c): The court recognized, however, that the language is susceptible to two interpretations. The Claims Court has heretofore exercised jurisdiction “[u]pon a number of occasions to review PSOBA denials.” Wydra, supra, at 837; Russell, supra at 356. We direct that this case be transferred to the United States Claims Court for review “in the interest of justice” rather than dismissing the petition for review. See Keller v. Merit Systems Protection Board, 679 F.2d 220, 223 (11th Cir.1982). The case is transferred to the United States Claims Court pursuant to 28 U.S.C. § 1631." }, { "docid": "22470515", "title": "", "text": "or insufficiency of the evidence; the only judicial question being whether the cause assigned was a legal cause. The process of arriving at this conclusion is one of construction of our Constitution. 255 P. 1077 at 1081. The Ulrick opinion further stated: It is the Governor, the chief executive, who is held responsible to the sovereignty for errors in his executive and administrative policies. The appointee is responsible to the chief executive . 255 P. 1077 at 1086. This Court has consistently held that when the interpretation of state law is involved, the federal courts must first determine whether the state courts have expressly passed on the issue and, if so, such decision or decisions provide clear precedence. United States v. Wyoming National Bank of Casper, 505 F.2d 1064 (10th Cir. 1974); Hardy Salt Company v. Southern Pacific Transportation Company, 501 F.2d 1156 (10th Cir. 1974), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974); Hardberger and Smylie v. Employers Mutual Liability Insurance Company of Wisconsin, 444 F.2d 1318 (10th Cir. 1971). And the interpretation and construction of state statutes (and constitutions) by the highest courts of the states will be followed by the federal courts unless those interpretations are inconsistent with fundamental principles of liberty and justice. O’Brien v. Skinner, supra; Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, Charlton v. Cox, 384 U.S. 976, 86 S.Ct. 1869, 16 L.Ed.2d 685 (1966); Goldsmith v. Cheney, 447 F.2d 624 (10th Cir. 1971). For decisions from other state jurisdictions which have upheld the governor’s power of removal of a state appointee serving for a fixed term, without notice or cause, under provisions very much akin to Art. V, § 5, supra, see Beasley v. Parnell, 177 Ark. 912, 9 S.W.2d 10 (1928); Townsend v. Kurtz, 83 Md. 331, 34 A. 1123 (1896); State ex rel. Ayers v. Kipp, 10 S.D. 495, 74 N.W. 440 (1898); State ex rel. McReavy v. Burke, 8 Wash. 412, 36 P. 281 (1894). In People ex rel. Jones v. Carver, 5 Colo.App. 156, 38 P. 332 (1894) the general principle" }, { "docid": "4298806", "title": "", "text": "this court is without jurisdiction. (Footnote omitted.) 620 F.2d at 36. The Wydra, Elaine Russell, and Lank-ford opinions cited above observed that their views were bolstered by the 1979 amendments to the Omnibus Act which deleted reference to the chapterwide scope of review previously contained in the judicial review provision. The judicial review provision, as amended in 1979, now specifies those sections of the Omnibus Act from which judicial review of the United States Court of Appeals for the circuit in which “such applicant or recipient” is located may be taken. Significantly, these specified sections do not include any part of the PSOBA. We recognize that the Ninth Circuit has rejected the view we here adopt. See Donna Sue Russell v. Law Enforcement Assistance Admin., 637 F.2d 1255 (9th Cir. 1980). In the Donna Sue Russell case, the Ninth Circuit rejected the proposition that Congress, by use of different terminology between the Omnibus Act and PSOBA, intended the two statutes to be treated differently. The court was not swayed by the weight given to the difference between reference to “applicants” for “grants” in the Omnibus Act and “claimants” for “benefits” under PSOBA. The court attributed the use of these different terms to mere carelessness on the part of Congress since the legislative history did not reveal intention to “[ajttach discrete meanings.” 637 F.2d at 1260. We disagree. It is our view that when Congress uses words in a statute without defining them, and those words have a judicially settled meaning, it is presumed that Congress intended them to have that meaning in the statute. Hardy Salt Company v. Southern Pacific Trans. Co., 501 F.2d 1156, 1168 (10th Cir.1974), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). This same rationale was well expressed in Wydra: [T]he petitioner’s reading of “grant application” also conflicts with the consistent use, both in PSOBA and in the LEAA regulations passed pursuant to the PSO-BA, of the terms “benefit” rather than “grant,” “claimant” or “recipient,” and “claim” rather than “application.” Both the Lankford and Elaine Russell decisions emphasized the same discrepancy between" }, { "docid": "23014492", "title": "", "text": "them so that a district court is given the flexibility to tailor its punishment of a person who has violated supervised release. Shayesteh raises an issue of first impression in this circuit. Furthermore, it appears that no other circuit has yet decided this issue. We are guided by this circuit’s general rules of statutory construction. When we construe a statute, we first look to its language. If the language is unclear, then we may look to the legislative history of the statute. Batista v. Sullivan, 882 F.2d 1480, 1483 (9th Cir.1989); Wang v. Immigration & Naturalization Serv., 622 F.2d 1341, 1347 n. 6 (9th Cir.1980), rev’d on other grounds, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981). Furthermore, we generally construe a statute written in the disjunctive as setting out separate and distinct alternatives. Azure v. Morton, 514 F.2d 897, 900 (9th Cir.1975) (“[T]he use of a disjunctive in a statute indicates alternatives and requires that they be treated separately.”); accord Batista, 882 F.2d at 1483; Wang, 622 F.2d at 1347 n. 6. As the Tenth Circuit has noted, any ambiguity about a disjunctive phrase in a criminal statute usually requires a court to strictly interpret “or” as disjunctive because to do otherwise would generally have the effect of increasing a person’s punishment. United States v. O’Driscoll, 761 F.2d 589, 598 (10th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986). Given the above rules of statutory construction, we interpret both section 3583 and Guidelines § 7A1.3 as setting out distinct alternatives from which a district court can choose. If a district court finds that a person has violated a condition of supervised release, then the court may either revoke the term of supervised release and incarcerate the person [18 U.S.C. § 3583(e)(3)], or the court may take the actions specified in section 3583(e)(2). However, a district court is not permitted to revoke a person’s supervised release, order a term of incarceration and then order another term of supervised release. Furthermore, we have reviewed the legislative history of section 3583. We do not find" }, { "docid": "4485283", "title": "", "text": "the extent of federal regulatory jurisdiction under the Act is to be determined in accordance with the basic test set forth in The Daniel Ball. The Rivers and Harbors Act of 1899 was a recompilation of two earlier acts, the Rivers and Harbors Act of 1890 and the Rivers and Harbors Act of 1894. Legislative history of the Rivers and Harbors Act of 1899 indicates that it was understood by its drafters to be merely a restatement of existing law. See United States v. Pennsylvania Chem. Corp., 411 U.S. 655, 666, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). The extent of federal regulatory power under § 10 of the Act, under which the Corps claims jurisdiction in the instant case, is limited to “navigable * * * waters of the United States. Since this is the precise phrase which was defined by the Supreme Court in The Daniel Ball, and which was used in that case and others to describe the reach of the federal commerce power over navigable waters prior to the enactment of the first Rivers and Harbors Act in 1890, we must assume that Congress intended the phrase to have the meaning which it had acquired in contemporary judicial interpretation. See Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 115, 60 S.Ct. 1, 84 L.Ed. 110 (1939); Hardy Salt Company v. Southern Pacific Trans. Co., 501 F.2d 1156, 1168 (10th Cir.), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). Indeed, virtually all courts which have interpreted the various provisions of the Rivers and Harbors Act of 1899 have begun with the basic definition of “navigable waters of the United States” set forth in The Daniel Ball. See United States v. Appalachian Electric Power Co., supra, 311 U.S. at 406, 61 S.Ct. 291; Leovy v. United States, supra; State Water Control Bd. v. Hoffman, 574 F.2d 191 (4th Cir. 1978); Hardy Salt Company v. Southern Pacific Trans. Co., supra at 1167; United States v. Stoeco Homes, Inc., 498 F.2d 597, 608-609 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124," }, { "docid": "4485284", "title": "", "text": "the first Rivers and Harbors Act in 1890, we must assume that Congress intended the phrase to have the meaning which it had acquired in contemporary judicial interpretation. See Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 115, 60 S.Ct. 1, 84 L.Ed. 110 (1939); Hardy Salt Company v. Southern Pacific Trans. Co., 501 F.2d 1156, 1168 (10th Cir.), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). Indeed, virtually all courts which have interpreted the various provisions of the Rivers and Harbors Act of 1899 have begun with the basic definition of “navigable waters of the United States” set forth in The Daniel Ball. See United States v. Appalachian Electric Power Co., supra, 311 U.S. at 406, 61 S.Ct. 291; Leovy v. United States, supra; State Water Control Bd. v. Hoffman, 574 F.2d 191 (4th Cir. 1978); Hardy Salt Company v. Southern Pacific Trans. Co., supra at 1167; United States v. Stoeco Homes, Inc., 498 F.2d 597, 608-609 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). Applying The Daniel Ball test to the waters at issue here, we agree with the District Court that Lake Minnetonka, and that portion of Minnehaha Creek above Minnetonka Mills, are not “navigable waters of the United States” as required for federal regulatory jurisdiction under § 10 of the Rivers and Harbors Act of 1899. The Daniel Ball test is bipartite; first, the body of water must be navigable in fact; and second, it must itself, or together with other waters, form a highway over which commerce may be carried on with other states. All parties agree that both Lake Minnetonka, and that portion of Minnehaha Creek above Minnetonka Mills, are navigable in fact. These waters do not, however, form themselves, or in conjunction with other navigable waters, a continued highway over which interstate commerce can be conducted. Lake Minnetonka is located entirely within the State of Minnesota, with Minnehaha Creek as its sole connecting waterway. Although the portion of Minnehaha Creek above Minnetonka Mills is navigable, the remainder of the creek" } ]

[ { "docid": "13418893", "title": "", "text": "contact of said body with the rifling of the firearm, said interface portion maintaining the nose portion and tail portion in synchronized rotation while being fixedly secured to one another by said interface portion whereby upon said projectile striking said predetermined target said interface portion ruptures thereby separating said nose and tail portions of said projectile. Claim 32, the second independent claim, describes: A projectile structured to be discharged from a firearm, said projectile comprising: a body including a nose portion and tail portion, said body further including an interface portion disposed intermediate opposite ends of said body in interconnecting relation to said nose and tail portions, said interface portion structured to provide controlled rupturing of said interface portion responsive to said projectile striking a predetermined target, said interface portion maintaining said nose portion and tail portion in synchronized rotation while being fixedly secured to one another by said interface portion whereby upon said projectile striking said predetermined target said interface portion ruptures thereby separating said nose and tail portions of the projectile; and said exterior surface of said interface portion disposed and structured to define a primary area of contact of said body with an interior barrel surface of said firearm. In 2010, the U.S. Army announced the development of its own bullet, the 5.56 mm M855A1 Enhanced Performance Round. Liberty alleges that the M855A1 is a copy of its patented green bullet, and thus that its manufacture and use infringes the '325 patent. First Am. Compl. ¶ 8. PROCEDURAL HISTORY After Liberty filed suit in this court on February 8, 2011, the government moved for dismissal of the breach-of-contract count, at which point Liberty amended its complaint and the parties stipulated to denial of the government’s motion to dismiss. See Joint Stipulation Regarding PL’s First Am. Compl. (July 18, 2011), ECF No. 11. A second motion to dismiss was filed by the government on July 28, 2011, pertaining to Liberty’s non-patent claims. After briefing and a hearing, the court held that Liberty’s claims related to the non-disclosure agreements were properly before the court, but that claims arising under" } ]

[ { "docid": "4154349", "title": "", "text": "means that the interface must “covert ] at least the ‘middle’ portion of the round, but is not limited to covering only that middle portion.” Pl.’s Post-Trial Br, at 9 (alteration in original); see Tr. 668:7-24 (German) (testifying that the court’s construction of “intermediate opposite ends” permits, but does not require, the interface to extend to the front or to the end of the projectile). The government’s attempt to limit this claim term falls short, Under the proper reading of “intermediate opposite ends,” the A1 projectiles literally infringe Claim 32. A trial, Liberty demonstrated by a preponderance of evidence that the reverse-drawn jackets of the M855A1 and M80A1 are disposed at “intermediate opposite ends” because the jackets cover at least the middle portion of the round. See PDX 66-67 (“Disposed Intermediate Opposite Ends” of the A1 Projectiles); see also Tr. 669:10-19 (German). Moreover, the government’s expert, Dr. Kitchens, conceded that under the court’s construction, the A1 projectiles are indeed “disposed at intermediate opposite ends.” Tr. 2344:20-22, 2395:24 to 2396:10 (Kitchens). Given that the jackets of the A1 projectiles fall within the scope of “intermediate opposite ends,” each and every element in Claim 32 reads on the A1 projectiles. Based on the foregoing, the M855A1 and the M80A1 literally infringe independent Claim 32. It is self-evident that dependent Claims 38-41, which incorporate by reference all of the limitations of Claim 32, are also infringed by the A1 projectiles, See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989); see also Tr. 2376:6-9 (Kitchens). 2. Claim 1. Liberty further contends that the A1 projectiles literally infringe, or alternatively inflinge under the doctrine of the equivalents, independent Claim 1 and the associated dependent Claims 1-3, 7-11,18-20, 22, 25, and 28-31. Pl.’s Post-Trial Br. at 5. Unlike Claim 32, Claim 1 describes a projectile having a “reduced area of contact” with the “interior barrel surface of said firearm.” See supra, at 9-10, 86 S.Ct. 684. There are “no clues within [Claim 1] itself as to what the area of contact has been reduced from,” Liberty Ammunition II, 111 Fed.Cl. at 375 (alteration" }, { "docid": "4154414", "title": "", "text": "than that of a traditional jacketed lead bullet of calibers .17 through .50 BMG,\" and held that \" 'intermediate opposite ends’ means that the interface is positioned between or in the middle of the opposite ends of the forward end of the nose portion and the trailing end of the tail portion.\" Liberty Ammunition II, ill Fed.Cl. at 375, 380. For the additional thirteen claims construed by the court, see id. at 371-80. . Section 102 was amended by Section 3 of the Leahy-Smith America Invents Act (\"AIA”), Pub.L. No. 112-29, 125 Stat. 284, and AIA Paragraph 3(n)(l) makes that change applicable to any patent application filed 18 months after September 16, 2011, i.e„ on March 16, 2013. Because the application for the '325 patent was filed well before that date, the court will reply on the pre-AIA version of § 102, See SD3, LLC v. Dudas, 952 F.Supp.2d 97, 103 nn. 4-5 (D.D.C.2013). . Section 103 also was amended by Section 3 of the AIA. For reasons stated supra, at n.29, the pre-AIA version of § 103 applies in this case. See Alcon Research Ltd. v. Barr Labs., Inc., 745 F.3d 1180, 1183 n.1 (Fed.Cir.2014); see also I.E.E. Int'l Electronics & Eng'g, S.A. v. TK Holdings Inc., No. 10-13487, 2014 WL 5371038, at *40 n. 4 (E.D.Mich. Oct. 23, 2014). . The government's expert, Dr. Clarence W. Kitchens, in his report had suggested that Liberty's interpretation of the claim term “is essentially identical to the limitation provided by the language in [C]laim 32 that the interface be 'dis[posed] ... in interconnecting relation to said nose and tail and portion.1 \" DX 203 at 34. This juxtapositioning of claim terms is not warranted. The terms “intermediate opposite ends” and dis[posed] ... in interconnecting relation to” serve different purposes in delineating the claim. . \" 'BMG” specifically refers to the Browning Machine Gun and thus “.50 BMG” refers to the cartridge developed for that machine gun (used for some time with the military-standard M2 heavy machine gun).” Liberty Ammunition II, 111 Fed.Cl. at 375 n. 8. . According to Liberty's expert," }, { "docid": "4154356", "title": "", "text": "hunting versus combat. Tr. 604:11-21 (German) (recognizing that “the ammunition has a variety of applications, and a variety of masses” because the bullets are “used in many different applications”). In sum, Dr. Kitchen’s identification regarding comparable projectiles is fatally flawed. The court accepts the findings of Liberty’s expert, Dr. German, because he assessed the surface area values of the M855A1 and the M80A1 with those of traditional jacketed lead rounds of the same caliber. • Specifically, Dr. German compared the contacting surface area of the M865A1 to the area values of traditional jacketed .22 caliber bullets. PX 12 at 17-18 (comparing the M855A1 EPR to the “MK262 Sierra,” the “Sierra Black Hills 100,” the “Berger .22 caliber 77grain OTM Tactical,” the “Berger .22 caliber 80 grain VLD,” the “Berger ,22 caliber 82 grain Long Range,” the “Berger .22 caliber 90 grain VLD,” and the “ATK 86 Grain”). Likewise, he examined the contacting surface areas of the M80 and traditional jacketed .308 caliber projectiles. PDX 3 (comparing the M80 to the “Berger .30 caliber 166 grain VLD hunting,” the “Sierra Pro Hunter,” and the “Barnes TSX”). Dr. German determined that the contacting surface area for the M866A1 is “less than the contacting surface area of a number of traditional jacketed .22 caliber projectiles (and, obviously, all 7.62 and .60 eal[iber] projectiles),” PX 12 at 18, and that the contacting surface area of the M80A1 is also “less than the contacting surface area of a number of traditional jacketed [.308] caliber projectiles,” id. at 20. Given that the M855A1 and the M80A1 have reduced areas of contact compared to traditional jacketed lead bullets, the court finds that Liberty has proven by a preponderance of the evidence that the A1 projectiles accused in this suit contain the “reduced area of contact” limitation found in Claim 1, and therefore, the M865A1 and the M80A1 literally infringe independent Claim 1. As such, claims 1-3, 7-11, 18-20, 22, 26, 28-31, which depend from independent Claim 1, are also directly infringed by the A1 projectiles. See Tr. 2376:2-5 (Kitchens); see also Wakpeton Canvas, 870 F.2d at 1553." }, { "docid": "4154351", "title": "", "text": "in original), but the specification recites “a reduced contact area as compared to conventional projectiles,” ’325 patent, col. 1, lines 65-66. During claim construction, Liberty argued that the claimed reduction was “self-referential, defined by a comparison between the interface and part of the interface.” Liberty Ammunition II, 111 Fed.Cl. at 375. In contrast, the government maintained that an accurate comparator was that of a “traditional jacketed projectile, which includes the M855.” Id. The court found that neither referent adequately addressed the missing antecedent and looked to the entire patent to select the following appropriate referent: the area of contact is reduced to that of a “traditional jacketed lead bullet of calibers .17 through .50 BMG.” Id. (recognizing that “ ‘conventional projectiles’ referred to in the specification must logically be limited to those projectiles comparable to the ones enabled by the ’325 patent, which is to say ‘all calibers generally ranging from .17 through [.]50 BMG.’ ”) (citing ’325 patent, col. 2, line 28). Accordingly, the court construed “reduced area of contact” to mean “the area of contact between the interface and the rifling of the firearm is less than that of a traditional jacketed lead bullet of calibers .17 through .50 BMG.” Id. Similar to Claim 32, the government only contests the infringement of one element found in Claim 1: the “reduced area of contact” limitation. Tr. 2375:16 to 2376:8 (Kitchens). The crux of the contention centers on the parties’ diverging selection of referent projectiles in accordance with the court’s claim construction order. For each A1 projectile, Liberty and the government selected jacketed lead comparators with the same caliber, but Dr. Kitchens further limited the government’s comparison to projectiles with approximately the same mass. Dr. Kitchens testified that the referent must have a similar weight as the accused projectile because a bullet’s mass is positively correlated to its length and its area of contact. See Tr. 2192:2 to 2193:4 (Kitchens).. According to Dr, Kitchens, “if heavier and larger bullets are considered proper comparative projectiles, then every bullet could conceivably have a reduced area of contact, as long as a heavier" }, { "docid": "4154417", "title": "", "text": "to be .2648 square inches and to be .3653 square inches, respectively. DX 203 at 23, 25. In contrast, Dr. German’s calculations were .2365 square inches for the M855A1 and .3260 square inches for the M80A1. PX 12 at 17, 19. The difference in area value for projectiles counting the cannelure is not dispositive. Both proffered values for the A1 projectiles are less than a number of \"traditional jacketed lead bullet of calibers .17 through .50 BMG.” See infra, at 391. .Dr. Kitchen testified that he did not know how many of the chosen comparators were ,22 shorts or .22 longs, partially- or non-jacketed projectiles, or other non-military ammunition. See Tr. 2201:23 to 2202:7 (Kitchens). Upon examining the referents chosen by Dr. Kitchens, it appears that at least the first eight of his referent projectiles for the M855A1 are .22 shorts, see, e.g., the \"Sierra .22 caliber (.224) 40 grain Hornet.\" DX 203 at 21. The remainder referents for both A1 projectiles feature partially-jacketed bullets, see, e.g., the \"Sierra .30 caliber/7.62mm (.308) 110 grain Round Nose,” id. at 27, or are advertised as non-military standard ammunition, see, e.g., the \"Sierra ,22 caliber (.224) High Velocity 55 grain FMJBT” and the \"Berger .22 cal. 52 gr. Match FB Varmint,” id. . Dr. German's export report included the M80 as a referent. He testified that he \"made a mathematical error in [his] calculation for [the M80],” but did not recalculate the contacting surface area value for trial because he was told it was not important since the expert report had been filed. Tr. 706:15 to 707:8 (German). Consequently, Dr. German's testimony at trial excluded the M80 as a comparator. See PDX 3. . Because Claim 1 is literally infringed under 28 U.S.C. 1498(a), it is not necessary for the court to determine infringement under the alternative test, i.e., the doctrine of equivalents. . A mushrooming projectile \"fold[s] back on a thickened base at target impact!,] increasing its lateral cross-section.” Pl.'s Post-Trial Reply Br. at 12. . In its claim construction order, the court construed “structured to provide controlled rupturing\" to mean \"that" }, { "docid": "4154357", "title": "", "text": "VLD hunting,” the “Sierra Pro Hunter,” and the “Barnes TSX”). Dr. German determined that the contacting surface area for the M866A1 is “less than the contacting surface area of a number of traditional jacketed .22 caliber projectiles (and, obviously, all 7.62 and .60 eal[iber] projectiles),” PX 12 at 18, and that the contacting surface area of the M80A1 is also “less than the contacting surface area of a number of traditional jacketed [.308] caliber projectiles,” id. at 20. Given that the M855A1 and the M80A1 have reduced areas of contact compared to traditional jacketed lead bullets, the court finds that Liberty has proven by a preponderance of the evidence that the A1 projectiles accused in this suit contain the “reduced area of contact” limitation found in Claim 1, and therefore, the M865A1 and the M80A1 literally infringe independent Claim 1. As such, claims 1-3, 7-11, 18-20, 22, 26, 28-31, which depend from independent Claim 1, are also directly infringed by the A1 projectiles. See Tr. 2376:2-5 (Kitchens); see also Wakpeton Canvas, 870 F.2d at 1553. B. Anticipation The government claims invalidity of the ’325 patent based on a lack of novelty. See 35 U.S.C. § 102(a)(1) (2006). For the court to invalidate the ’325 patent for lack of novelty, a single prior art reference must anticipate each and every limitation of the claimed invention. See Verdeyaal Bros., 814 F.2d at 631. A prior art reference may anticipate without expressly disclosing a limitation of the claimed invention if the absent limitation is inherent, or necessarily present, in the prior art reference. See id. To prove anticipation, the government points to three prior art references: the Leussler ’416 patent (U.S. Patent No. 1,967,416), the Nosier ’420 patent (U.S. Patent No. 3,003,420), and the M855/M855 LFS rounds. The government maintains that Claim 32 and the claims that depend from Claim 32 are anticipated by both above-mentioned patents and that Claim 1 and those claims that depend on Claim 1 are anticipated by the Nosier ’420 patent and are inherently anticipated by the M855/M855 LFS. Liberty argues that these prior art references are not" }, { "docid": "13418909", "title": "", "text": "contact of said body with the rifling of the firearm”); see also '325 patent at col. 2, lines 58-61 (“The disposition and structuring of the interface results in the positioning of an outer surface thereof so as to define the primary contact area between the body of the projectile and the rifling or interior surface of the barrel.”). The court adopts a construction of Term 3, “reduced area of contact,” as meaning that the area of contact between the interface and the rifling of the firearm is less than that of a traditional jacketed lead bullet of calibers .17 through .50 BMG. 4. “Synchronized rotation. ” This term appears in independent Claim 1, and the parties agree that it means that the nose, tail, and interface portions rotate in the same direction and at the same rate. The court accepts and adopts this construction. 5. “Fixedly secured. ” Plaintiffs Proposed Claim Means that the nose, tail, and interface portions are connected, subject to being detached upon striking an intended target. Proposed Claim Construction Means that the nose, tail, and interface portions are connected to each other in a secured fashion (e.g., by employing a press-fitted frictional connection, and/or adding interior peripheral rims at the ends of the interface), such that the projectile assembly remains intact (and in synchronized rotation) during launch and flight from the firearm._ This term appeal’s in independent Claims 1 and 32. The parties concur that the crux of Term 5 is that the three component parts of a '325 projectile are “secured” to each other, meaning that they are connected prior to use in the firearm. The parties diverge over whether a description of the projectile’s condition during launch and flight is appropriate, as well as whether methods of connection need be addressed in claim construction. The government’s inclusion of the projectile’s condition “during launch and flight” is an appropriate addition to Liberty’s construction of Term 5 because that condition is essential to the proper function of the interface. The term “fixedly secured” appears once in each of the independent claims, both times in the context" }, { "docid": "4154354", "title": "", "text": "contact than the M80 ..., as well as a larger area of contact than nine other 7.62mm (.30 eal[iber]) traditional jacketed lead bullets,” id at 28. He then concluded that neither the M855A1 nor the M80A1 “literally meet (or infringe) the ‘reduced are of contact limitation.’ ” Id. at 24, 29. The court finds that the M855 and M80 are not the sole comparators for the claim term because the ’325 patent is silent as to this additional limitation. The specification simply recites that the area of contact is reduced as compared to “conventional projectiles,” ’325 patent, col. 1, lines 65 to 66, which are projectiles of “all calibers generally ranging from..17 through [J50 BMG,” id. at col. 2, line 28. See Liberty Ammunition II, 111 Fed.Cl. at 375 (declining to adopt the M855 as a referent when construing the claim term “reduced area of contact”). Comparing the accused rounds by weight is equally problematic for three reasons. First, the standard of comparison enunciated by the court is that of “traditional jacketed lead bullet of calibers .17 through .50 BMG.” Id. Notably absent from the court’s construction is any limitation on the weight of the referent. See Tr. 604:22-24 (German). Accordingly, selecting referent rounds, by weight impermissibly limits the “reduced area of contact” claim term. Second, many of the referents cited by Dr. Kitchens are. not traditional jacketed lead bullets. Rather, a number of those comparators are either partially- or non-jacketed bullets, non-military standard ammunition, or civilian ,22 caliber ammunition designated as .22 “shorts” or “longs” that are not comparable in any meaningful way to ammunition, used by the military. See DX 203 at 21, 27; see also Pl.’s Post-Trial Br. at 10 n.5 (“While Dr. Kitchens purports to list a number of rounds with a lesser contacting surface area than the M855A1, many of these rounds are .22 ‘shorts[,]’ a rimfire munition that may or r may not be characterized as a ‘traditional’ jacketed lead round.”). Third, traditional jacketed lead bullets are intentionally manufactured to be different weights to account for their intended shooting application, e.g., target practice versus" }, { "docid": "4154301", "title": "", "text": "Post-trial decision in patent case; U.S. Patent No. 7,748,325 entitled “Firearms Projectile;” patent validity; 35 U.S.C. § 103 (2006); infringement by M855A1 and M80A1 ammunition; “reasonable and entire compensation” for the compulsory, non-exclusive patent license; 28 U.S.C. § 1498(a) OPINION AND ORDER LETTOW, Judge. This post-trial decision addresses plaintiffs claims for damages for patent infringement and for breach of non-disclosure agreements relating to the intellectual property rights to a firearms projectile. Plaintiff, Liberty Ammunition, LLC (“Liberty”), alleges that the United States (“the government”) through the Department of Defense (“DOD”), has infringed upon its patent, United States Patent No. 7,748,325 (“’325 patent”), entitled “Firearms Projectile.” Since the mid-1990s, the DOD has been seeking a lethal, lead-free bullet to take the place of the former 5.56 x 45mm (.223 caliber) standard-issue NATO round, the M855. In 2010, the United States Department of the Army (“the Army”) began replacing the M855 with a new lead-free bullet, the M855A1 Enhanced Performing Round (“EPR”). The Army is seeking to also replace another bullet, the M80, with a similar lead-free design, designated as the M80A1 EPR. During the development of this ammunition, an individual now associated with Liberty, PJ Marx, the inventor of the projectile covered by the ’325 patent, contacted individuals at the DOD to share his design for a new, lead-free projectile. Liberty further alleges that through these conversations with Mr. Marx, the Army copied its design and violated the terms of three nondisclosure agreements (“NDAs”) by disclosing confidential information within the Army to unauthorized recipients, including some who worked with vendors of ammunition to the Army. The government' denies both of Liberty’s claims and asserts that the ’325 patent is invalid. An eleven-day trial was held in Washington, DC, commencing on June 23, 2014, and ending on July 8, 2014. Following post-trial briefing, a closing argument was held on October 24, 2014. The ease is now ready for disposition, FACTS A. Army’s Standard Ammunition During the Vietnam War, the Army discontinued its use of its earlier standard projectile in favor of a .22 caliber bullet, the M855. See Pl.’s Pretrial Mem. at 1," }, { "docid": "4154345", "title": "", "text": "U.S.C. 1498(a), alleging that the M855A1 and the M80A1 (“Al projectiles”) directly infringe, by literal infringement and under the doctrine of equivalents, the ’325 patent. Specifically, Liberty charges the government with infringement of independent Claims 1 and 32, as well as dependent Claims 2-3, 7-11, 18-20, 22, 25, 28-32, and 38-41. PL’s Post-Trial Br. at 5-6, ECF No. 99, The government maintains that the Al projectiles do not directly infringe independent Claims 1 or 32 or their dependent claims, Def.’s Post-Trial Br. at 40-46, ECF No. 103, and contests the validity of “each and every claim of the ’325 patent,” id. at 47. Before addressing the government’s invalidity contentions, the court will make a factual determination regarding whether the Al projectiles directly infringe the foregoing claims in the ’325 patent. A. Literal Infringement 1. Claim 32. Liberty avers that the Al projectiles literally infringe independent Claim 32, as well as the associated dependent Claims 38-41. To prove literal infringement, Liberty has the burden of demonstrating that the Al projectiles embody each and every element in Claim 32. ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1578 (Fed.Cir.1988); Judin v. United States, 27 Fed.Cl. 759, 784 (1993). If the language set forth in Claim 32 reads directly on the Al projectiles, “the court may disregard additional components or elements of the [Al projectiles] if those additions do not produce a radically different result.” Judin, 27 Fed.Cl. at 784; see also Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 797 (Fed.Cir.1990). The government concedes that the Al projectiles infringe each and every element of Claim 32 in the ’325 patent except the claim limitation “intermediate opposite ends.” See supra, at 381, 384 n. 28; Tr. 2375:16 to 2376:9 (Kitchens); Def.’s Post-Trial Br. at 45-46. In its claim construction order, the court construed “intermediate opposite ends” to mean “that the interface is positioned between or in the middle of the opposite ends of the forward end of the nose portion and the trailing end of the tail portion.” Liberty Ammunition II, 111 Fed.Cl. at 379-80. The court further acknowledged" }, { "docid": "4154302", "title": "", "text": "designated as the M80A1 EPR. During the development of this ammunition, an individual now associated with Liberty, PJ Marx, the inventor of the projectile covered by the ’325 patent, contacted individuals at the DOD to share his design for a new, lead-free projectile. Liberty further alleges that through these conversations with Mr. Marx, the Army copied its design and violated the terms of three nondisclosure agreements (“NDAs”) by disclosing confidential information within the Army to unauthorized recipients, including some who worked with vendors of ammunition to the Army. The government' denies both of Liberty’s claims and asserts that the ’325 patent is invalid. An eleven-day trial was held in Washington, DC, commencing on June 23, 2014, and ending on July 8, 2014. Following post-trial briefing, a closing argument was held on October 24, 2014. The ease is now ready for disposition, FACTS A. Army’s Standard Ammunition During the Vietnam War, the Army discontinued its use of its earlier standard projectile in favor of a .22 caliber bullet, the M855. See Pl.’s Pretrial Mem. at 1, EOF No. 56; see also Tr. 443:19-20 (Test, of George Joseph Phillips, Liberty’s CEO). The M855 was developed by Belgium, Tr. 1554:23, 1557:9 (Test, of Dr. James Frederick Newill, Weapons and Materials Research Directorate’s Force Application Capability Research Area Manager), and incorporates a hardened steel penetrator; a lead slug; and a forward-drawn copper jacket, JX 11 at 1 (M855 Design), JX 83 at 4 (M855 Technical Drawing). The M855 features a 5.56mm (.228 in) cartridge, JX 83 at 1, 4, and has a weight of 62 grains, JX 11 at 1. In 1983, the M866 became the standard NATO ammunition in its caliber and has been used in infantry deployments overseas. See Pi’s Pre-Trial Mem. at 1; see also Tr. 306:7-8 (Test, of PJ Marx, ’326 Patent Inventor). A similar, but larger and heavier lead projectile, the M80, is also used by the Army. See supra, at 375 n. 2. The M80 weighs 147.5 grains, Tr. 2223:12 (Test, of Clarence Wesley Kitchens, Jr., defendant’s technical expert) and is the standard NATO 7.62 mm (.30 in)" }, { "docid": "4154348", "title": "", "text": "F.3d 1303, 1323 (Fed.Cir.2005) (“[W]e have repeatedly warned against confining the claims to those embodiments ... [and] expressly rejected the contention that if a patent describes only a single embodiment, the claims of the patent must be construed as being limited to that embodiment.”)). The government further argues that an embodiment in which the interface encloses an end portion contradicts the meaning of “intermediate opposite ends” because that interface no longer is “positioned between or in the middle of the opposite ends [of the projectile].” See DX 203 at 34 (Dr. Kitchens’s Responsive Expert Report Regarding Infringement); see also Def.’s Post-Trial Br. at 46. This supposition mischarac-terizes the claim language. The claim term “intermediate opposite ends” is preceded by the open transition term “including.” It is axiomatic in patent law that the terms “in- eluding” and “comprising” have the same meaning, “namely that the listed elements ... are essential but other elements may be added.” Lucent Technologies, Inc. v. Gateway, Inc., 525 F.3d 1200, 1214 (Fed.Cir.2008). Therefore, as Liberty correctly has recognized, “intermediate opposite ends” means that the interface must “covert ] at least the ‘middle’ portion of the round, but is not limited to covering only that middle portion.” Pl.’s Post-Trial Br, at 9 (alteration in original); see Tr. 668:7-24 (German) (testifying that the court’s construction of “intermediate opposite ends” permits, but does not require, the interface to extend to the front or to the end of the projectile). The government’s attempt to limit this claim term falls short, Under the proper reading of “intermediate opposite ends,” the A1 projectiles literally infringe Claim 32. A trial, Liberty demonstrated by a preponderance of evidence that the reverse-drawn jackets of the M855A1 and M80A1 are disposed at “intermediate opposite ends” because the jackets cover at least the middle portion of the round. See PDX 66-67 (“Disposed Intermediate Opposite Ends” of the A1 Projectiles); see also Tr. 669:10-19 (German). Moreover, the government’s expert, Dr. Kitchens, conceded that under the court’s construction, the A1 projectiles are indeed “disposed at intermediate opposite ends.” Tr. 2344:20-22, 2395:24 to 2396:10 (Kitchens). Given that the jackets of" }, { "docid": "4154350", "title": "", "text": "the A1 projectiles fall within the scope of “intermediate opposite ends,” each and every element in Claim 32 reads on the A1 projectiles. Based on the foregoing, the M855A1 and the M80A1 literally infringe independent Claim 32. It is self-evident that dependent Claims 38-41, which incorporate by reference all of the limitations of Claim 32, are also infringed by the A1 projectiles, See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989); see also Tr. 2376:6-9 (Kitchens). 2. Claim 1. Liberty further contends that the A1 projectiles literally infringe, or alternatively inflinge under the doctrine of the equivalents, independent Claim 1 and the associated dependent Claims 1-3, 7-11,18-20, 22, 25, and 28-31. Pl.’s Post-Trial Br. at 5. Unlike Claim 32, Claim 1 describes a projectile having a “reduced area of contact” with the “interior barrel surface of said firearm.” See supra, at 9-10, 86 S.Ct. 684. There are “no clues within [Claim 1] itself as to what the area of contact has been reduced from,” Liberty Ammunition II, 111 Fed.Cl. at 375 (alteration in original), but the specification recites “a reduced contact area as compared to conventional projectiles,” ’325 patent, col. 1, lines 65-66. During claim construction, Liberty argued that the claimed reduction was “self-referential, defined by a comparison between the interface and part of the interface.” Liberty Ammunition II, 111 Fed.Cl. at 375. In contrast, the government maintained that an accurate comparator was that of a “traditional jacketed projectile, which includes the M855.” Id. The court found that neither referent adequately addressed the missing antecedent and looked to the entire patent to select the following appropriate referent: the area of contact is reduced to that of a “traditional jacketed lead bullet of calibers .17 through .50 BMG.” Id. (recognizing that “ ‘conventional projectiles’ referred to in the specification must logically be limited to those projectiles comparable to the ones enabled by the ’325 patent, which is to say ‘all calibers generally ranging from .17 through [.]50 BMG.’ ”) (citing ’325 patent, col. 2, line 28). Accordingly, the court construed “reduced area of contact” to mean “the area" }, { "docid": "13418908", "title": "", "text": "This comparison is somewhat consistent with the patent history set out in the specification, which notes that reduced contact area “compared to conventional projectiles” would improve upon prior art by “reducing heat buildup and improving barrel performance during sustained fire of the firearms.” '325 patent at col. 1, lines 65-66 and col. 2, lines 46-49. The “conventional projectiles” referred to in the specification must logically be limited to those projectiles comparable to the ones enabled by the '325 patent, which is to say “all calibers genei’ally ranging from .17 through [,]50 BMG.” Id. at col. 2, line 28. This is a more precise description of the limitation than “traditional jacketed projeetile[s], which includes the M855” as offered by the government. The government’s definition also is partially deficient because it mischaraeterizes the particular surface described in the '325 patent. Rather than the projectile generally, as the government indicates, it is the interface portion specifically which comprises the reduced area of contact. See Claim 1 (“said interface portion disposed and dimensioned to define a reduced area of contact of said body with the rifling of the firearm”); see also '325 patent at col. 2, lines 58-61 (“The disposition and structuring of the interface results in the positioning of an outer surface thereof so as to define the primary contact area between the body of the projectile and the rifling or interior surface of the barrel.”). The court adopts a construction of Term 3, “reduced area of contact,” as meaning that the area of contact between the interface and the rifling of the firearm is less than that of a traditional jacketed lead bullet of calibers .17 through .50 BMG. 4. “Synchronized rotation. ” This term appears in independent Claim 1, and the parties agree that it means that the nose, tail, and interface portions rotate in the same direction and at the same rate. The court accepts and adopts this construction. 5. “Fixedly secured. ” Plaintiffs Proposed Claim Means that the nose, tail, and interface portions are connected, subject to being detached upon striking an intended target. Proposed Claim Construction Means that" }, { "docid": "4154353", "title": "", "text": "bullet was used as a comparator.” DX 203 at 17. Dr. Kitchens determined that the M80 and the M855 “are the best comparators” because they are “the same weight as [their successors], and they are both general-purpose Army rounds that will be used in the same weapon.” Def.’s Post-Trial Br. at 42; see DX 203 at 15-16. Recognizing that the specific predecessor rounds may be “excluded as a standard of comparison,” see DX 203 at 17, Dr. Kitchens selected additional ,22 caliber bullets with weights between 40 and 70 grains as comparators for the M855A1, id. at 21. He also picked the M80 and other .30 caliber projectiles with weights of 110 to 168 grains as referents for the M80A1. Id. at 27. Based on these comparators, Dr. Kitchens concluded that the “M855A1 has a larger area of contact than the M855 it has replaced, as well as a larger area of contact than twenty other representative 5.56mm (0.22 cal[iber]) traditional lead bullets,” id. at 22-23, and that “the M80A1 has a larger area of contact than the M80 ..., as well as a larger area of contact than nine other 7.62mm (.30 eal[iber]) traditional jacketed lead bullets,” id at 28. He then concluded that neither the M855A1 nor the M80A1 “literally meet (or infringe) the ‘reduced are of contact limitation.’ ” Id. at 24, 29. The court finds that the M855 and M80 are not the sole comparators for the claim term because the ’325 patent is silent as to this additional limitation. The specification simply recites that the area of contact is reduced as compared to “conventional projectiles,” ’325 patent, col. 1, lines 65 to 66, which are projectiles of “all calibers generally ranging from..17 through [J50 BMG,” id. at col. 2, line 28. See Liberty Ammunition II, 111 Fed.Cl. at 375 (declining to adopt the M855 as a referent when construing the claim term “reduced area of contact”). Comparing the accused rounds by weight is equally problematic for three reasons. First, the standard of comparison enunciated by the court is that of “traditional jacketed lead bullet of" }, { "docid": "4154352", "title": "", "text": "of contact between the interface and the rifling of the firearm is less than that of a traditional jacketed lead bullet of calibers .17 through .50 BMG.” Id. Similar to Claim 32, the government only contests the infringement of one element found in Claim 1: the “reduced area of contact” limitation. Tr. 2375:16 to 2376:8 (Kitchens). The crux of the contention centers on the parties’ diverging selection of referent projectiles in accordance with the court’s claim construction order. For each A1 projectile, Liberty and the government selected jacketed lead comparators with the same caliber, but Dr. Kitchens further limited the government’s comparison to projectiles with approximately the same mass. Dr. Kitchens testified that the referent must have a similar weight as the accused projectile because a bullet’s mass is positively correlated to its length and its area of contact. See Tr. 2192:2 to 2193:4 (Kitchens).. According to Dr, Kitchens, “if heavier and larger bullets are considered proper comparative projectiles, then every bullet could conceivably have a reduced area of contact, as long as a heavier bullet was used as a comparator.” DX 203 at 17. Dr. Kitchens determined that the M80 and the M855 “are the best comparators” because they are “the same weight as [their successors], and they are both general-purpose Army rounds that will be used in the same weapon.” Def.’s Post-Trial Br. at 42; see DX 203 at 15-16. Recognizing that the specific predecessor rounds may be “excluded as a standard of comparison,” see DX 203 at 17, Dr. Kitchens selected additional ,22 caliber bullets with weights between 40 and 70 grains as comparators for the M855A1, id. at 21. He also picked the M80 and other .30 caliber projectiles with weights of 110 to 168 grains as referents for the M80A1. Id. at 27. Based on these comparators, Dr. Kitchens concluded that the “M855A1 has a larger area of contact than the M855 it has replaced, as well as a larger area of contact than twenty other representative 5.56mm (0.22 cal[iber]) traditional lead bullets,” id. at 22-23, and that “the M80A1 has a larger area of" }, { "docid": "4154413", "title": "", "text": "on April 26, 2007. See '325 patent at 1. . ARL had previously determined that the weight of the original M855, 62 grains, was optimal for a 5,56mm projectile. DX 156 at 13-14 (\"Projectile Mass Study”). . \"On May 7, 2010, the Army submitted Patent Application No. 61332631 for its bullet, but this application apparently has been abandoned.” Liberty Ammunition, LLC v. United States (.\"Liberty Ammunition II ”), 111 Fed.Cl. 365, 370 n. 6 (2013). . Muzzle flash refers to the flare of light created by the combustion of propellant in the cartridge upon firing. See JX 15 at 8. .In architectural terms, an ogive is a curved, pointed arch, often represented in Gothic windows or fan vaulting. See Merriam-Webster Online Dictionary, ogive, available at www. merriam-webster.com/dictionary/ogive. For projectiles, an ogive can appear as a streamlined, elliptical, rounded nose. . Most importantly for this post-trial decision, the court adopted a construction of \" 'reduced area of contact,’ as meaning that the area of contact between the interface and the rifling of the firearm is less than that of a traditional jacketed lead bullet of calibers .17 through .50 BMG,\" and held that \" 'intermediate opposite ends’ means that the interface is positioned between or in the middle of the opposite ends of the forward end of the nose portion and the trailing end of the tail portion.\" Liberty Ammunition II, ill Fed.Cl. at 375, 380. For the additional thirteen claims construed by the court, see id. at 371-80. . Section 102 was amended by Section 3 of the Leahy-Smith America Invents Act (\"AIA”), Pub.L. No. 112-29, 125 Stat. 284, and AIA Paragraph 3(n)(l) makes that change applicable to any patent application filed 18 months after September 16, 2011, i.e„ on March 16, 2013. Because the application for the '325 patent was filed well before that date, the court will reply on the pre-AIA version of § 102, See SD3, LLC v. Dudas, 952 F.Supp.2d 97, 103 nn. 4-5 (D.D.C.2013). . Section 103 also was amended by Section 3 of the AIA. For reasons stated supra, at n.29, the pre-AIA version" }, { "docid": "4154355", "title": "", "text": "calibers .17 through .50 BMG.” Id. Notably absent from the court’s construction is any limitation on the weight of the referent. See Tr. 604:22-24 (German). Accordingly, selecting referent rounds, by weight impermissibly limits the “reduced area of contact” claim term. Second, many of the referents cited by Dr. Kitchens are. not traditional jacketed lead bullets. Rather, a number of those comparators are either partially- or non-jacketed bullets, non-military standard ammunition, or civilian ,22 caliber ammunition designated as .22 “shorts” or “longs” that are not comparable in any meaningful way to ammunition, used by the military. See DX 203 at 21, 27; see also Pl.’s Post-Trial Br. at 10 n.5 (“While Dr. Kitchens purports to list a number of rounds with a lesser contacting surface area than the M855A1, many of these rounds are .22 ‘shorts[,]’ a rimfire munition that may or r may not be characterized as a ‘traditional’ jacketed lead round.”). Third, traditional jacketed lead bullets are intentionally manufactured to be different weights to account for their intended shooting application, e.g., target practice versus hunting versus combat. Tr. 604:11-21 (German) (recognizing that “the ammunition has a variety of applications, and a variety of masses” because the bullets are “used in many different applications”). In sum, Dr. Kitchen’s identification regarding comparable projectiles is fatally flawed. The court accepts the findings of Liberty’s expert, Dr. German, because he assessed the surface area values of the M855A1 and the M80A1 with those of traditional jacketed lead rounds of the same caliber. • Specifically, Dr. German compared the contacting surface area of the M865A1 to the area values of traditional jacketed .22 caliber bullets. PX 12 at 17-18 (comparing the M855A1 EPR to the “MK262 Sierra,” the “Sierra Black Hills 100,” the “Berger .22 caliber 77grain OTM Tactical,” the “Berger .22 caliber 80 grain VLD,” the “Berger ,22 caliber 82 grain Long Range,” the “Berger .22 caliber 90 grain VLD,” and the “ATK 86 Grain”). Likewise, he examined the contacting surface areas of the M80 and traditional jacketed .308 caliber projectiles. PDX 3 (comparing the M80 to the “Berger .30 caliber 166 grain" }, { "docid": "4154326", "title": "", "text": "direct similarity between [the two designs].” Tr. 778:25 to 779:6 (Test, of John D. Bennett, SOCOM’s Acquisition Logistician). JX 54 at 2 (M855A1 Technical Drawing). H. Army’s Adoption and Fielding of the M855A1 The M855A1 EPR was fielded in Afghanistan in 2010 and has since replaced the M855 round. See Tr. 1694:17-25 (Newill); see also JX 15 at 11. The developers of the M855A1 have been awarded DOD’s highest acquisition award for their exemplary contribution to small arms ammunition. JX 80 (“PEO Ammunition Team wins DOD’s highest award” (Oct. 5, 2012)) (“The result is the most effective and technically advanced small caliber cartridge ever developed, designed to equip our troops with improved ammunition quickly, while also supporting the Army’s requirement for an environmentally friendly projectile’” (quoting Col. Paul Hill, PM-MAS)). As of 2013, LCAAP had produced over one billion rounds of the M855A1, see Tr. 892:4 (Test, of Kimberly Mary McCleer-ey, PM-MAS Acquisition Manager), see also Tr. 2041:8-9 (Hanzl), which is now the Army’s. 22 caliber standard issue ammunition, Tr. 306:9-10 (Marx). I. Adoption of the M80A1 “As soon as [the Army] knew [they] were very likely to be successful with the M855A1,” Tr. 1698:15-16 (Newill), they began exploring how to “integrate to the M80 projectile the same types of performance gains achieved in the M856A1 while removing the lead from the projectile due to environmental reasons.” DX 175 at 7 (Defendant’s Responses to Plaintiffs Third Set of Interrogatories); Tr. 189:12-18 (Ehlers). The 7.62mm M80A1, reproduced below, is the Army’s most recent prototype round. Similar to the M855A1, the projectile of the M80A1 EPR employs a steel penetrator, copper slug, and reverse copper jacket that ruptures upon striking a soft target. However, the M80A1 features different dimensions and detailed features from those of the M856A1. DX 175 at 7-9; see Tr. 1443:24 to 1445:6 (Middleton). As of the date of the trial, qualification and performance evaluations were still being performed on the M80A1. See Tr. 1699:10-11 (Newill). JX 144 at 2 (M80A1 Technical Drawing) PROCEDURAL HISTORY Liberty filed suit in this court on February 8, 2011 alleging that the Army’s" }, { "docid": "13418894", "title": "", "text": "exterior surface of said interface portion disposed and structured to define a primary area of contact of said body with an interior barrel surface of said firearm. In 2010, the U.S. Army announced the development of its own bullet, the 5.56 mm M855A1 Enhanced Performance Round. Liberty alleges that the M855A1 is a copy of its patented green bullet, and thus that its manufacture and use infringes the '325 patent. First Am. Compl. ¶ 8. PROCEDURAL HISTORY After Liberty filed suit in this court on February 8, 2011, the government moved for dismissal of the breach-of-contract count, at which point Liberty amended its complaint and the parties stipulated to denial of the government’s motion to dismiss. See Joint Stipulation Regarding PL’s First Am. Compl. (July 18, 2011), ECF No. 11. A second motion to dismiss was filed by the government on July 28, 2011, pertaining to Liberty’s non-patent claims. After briefing and a hearing, the court held that Liberty’s claims related to the non-disclosure agreements were properly before the court, but that claims arising under the Lanham Act and under Florida unfair-competition law were not. See Liberty Ammunition, 101 Fed.Cl. at 586-92. The parties then proceeded with discovery and claim construction. DISCUSSION A. Standards for Claim Construction The scope and meaning of claims in a patent are questions of law to be addressed by the court. Markman v. Westview Instruments, Inc., 517 U.S. 370, 388-90, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The most salient indicia of the construction of claim terms are found in the patent itself. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996) (“[I]ntrinsie evidence is the most significant source of the legally operative meaning of disputed claim language.”). As a result, the court focuses on the patent’s claims and specifications, as well as prosecution history. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577. A court should construe claim terms according to the ordinary and customary meanings attributed by those of ordinary skill in the art at the date of the invention," } ]

[ { "docid": "5302487", "title": "", "text": "the Manual for Courts-Martial, an expert Witness is “one who is skilled in some art, trade, profession or science or who has knowledge and experience in relation to matters which are not generally within the knowledge of men of common education and experience.” Paragraph 138e. We have earlier pointed out that a law officer is to be granted wide discretion in applying this standard. United States v. Hagelberger, 3 USCMA 259, 12 CMR 15. Yet we are sure that the present law officer exceeded sound limits in ruling that Mr. Kinniry was qualified to offer certain of the opinions he was permitted to express at the trial. Concededly the latter had enjoyed greater experience with homosexuals than is possessed by “men of common education and experience.” So far as the record shows, however, he lacked any sort of medical or other scientific training in psychiatric disorders. It is common knowledge that homosexuality remains an enigma to numerous scientific students who have devoted impressive periods of time to the consideration of its causes and effects. At their disposal — either through professional observation or in medical literature— are innumerable case histories. We doubt that, in our present state of knowledge, anyone could qualify as sufficiently expert to express a judicially admissible opinion on the veracity of the homosexual. Certainly we find no reason to construct an exception for Mr. Kinniry — despite his greater-than-average acquaintance with these unfortunates. Moreover, an expert opinion should bear some measurable relation to empirical observation. As the scientist would put it, the opinion should be based on results substantially verifiable. Mr. Kinniry spoke of the credibility of an active homosexual’s accusations. How in the past had he verified the truthfulness of such allegations? It is indisputable that sodomy is not customarily performed under conditions of publicity. Generally only the participants in the act are present during its performance, and each might well recognize an interest in furnishing a false account of the transaction. Thus, the situation is quite unlike that in which a typical scientific experiment is conducted — one in which the expert ordinarily is" } ]

[ { "docid": "5670441", "title": "", "text": "medical testimony further indicated that, in consequence of her mental condition, the victim was likely “to be overawed more easily by a demonstration of force than would be usual in a woman of her age.” Id. at 272, 15 C.M.R. at 272. In United States v. Fields, supra, the psychologist was not properly qualified to testify to the presence and effects of an “emotional problem” of a government witness, but the Court’s opinion clearly implies that if he had been qualified he could have testified to the witness’ character traits known to him and their effect on veracity. In United States v. Hill, 655 F.2d 512 (3d Cir.1981), the Court of Appeals for the Third Circuit upheld the admissibility of expert testimony of the defendant’s uncommon “susceptibility to influence” to commit a crime, as evidence relevant to accused’s defense of entrapment. Id. at 516. See also United States v. Staggs, 553 F.2d 1073 (7th Cir.1977). Looking at Dr. Randall’s testimony in regard to Sandra’s personality traits, we are satisfied the trial judge had ample justification to attribute to it a distinct tendency to make more probable a finding that Sandra had not consented to intercourse with the accused. We are also convinced that he had ample justification to view the opinions offered by Dr. Randall on the hypothetical questions presented by both trial and defense counsel as within his special expertise and of substantial probative value on the existence vel non of non-consent. Para. 138e, Manual, supra. See also Mil.R. Evid. 401. (2) The Relevance of Doctor Smith’s Testimony As the summary of his testimony indicates, Dr. Smith testified to substantially the same personality traits of Sandra as did Dr. Randall. The major difference between them is that Dr. Smith provided an opinion on a hypothetical question not presented to Dr. Randall. He stated that, in his opinion, it would be consistent with Sandra’s “fear of retaliation” that, if she were struck one or more times by a male who was “respond[ing] on a sexual basis to her” conduct, and the male “threaten[ed] to kill her,” she would likely consent" }, { "docid": "11475209", "title": "", "text": "compare the expert’s area of expertise with the particular opinion the expert seeks to offer. Here the expert should be permitted to testify only if the expert’s particular expertise however acquired enables the expert to give an opinion that is capable of assisting the trier of fact. See Thomas v. Newton Int'l. Enterprises, 42 F.3d 1266, 1269 (9th Cir.1994); Carroll v. Otis Elevator, 896 F.2d 210, 214-15 (7th Cir. 1990); Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1458-59 (10th Cir.1990). B. Qualifications of the Expert The Advisory Committee Notes to Rule 702 state that Rule 702 is “broadly phrased and intended to embrace more than a narrow definition of a qualified expert.” It has been held, however, that a court may exclude an expert who does not have the appropriate experience, education or training to offer a helpful opinion with regard to controverted issues. In Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311, 1317-18 (9th Cir.1995) (Daubert II) the Ninth Circuit Stated: Rule 702’s helpfulness standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. (emphasis added) See, e.g., Hughes v. Hemingway Transp., Inc., 539 F.Supp. 130, 133 (E.D.Pa.1982) (exclusion of witness’ opinion testimony was proper because the deposition revealed that the witness could not calculate the coefficient of friction on the roadway at the time of the accident and, therefore, could not determine whether the driver of a tractor/trailer was using the proper technique for coping with a skid during icy conditions); Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1458-59 (10th Cir.1990) (District Court properly excluded the testimony of a pediatrician who was experienced as a children’s accident preventionist. The lawsuit involved the death of a child while a passenger on an all-terrain vehicle manufactured by the defendant. The excluded testimony, however, related to the conduct of the adult driver and had no bearing on the behavior of the child passenger). Indeed some issues clearly require expertise in a particular field. For example, in Edmonds v. Illinois Central Gulf Railroad, 910 F.2d 1284, 1287 (5th Cir.1990) it was held to be err" }, { "docid": "7149198", "title": "", "text": "a number of articles and works by other psychologists who specialized in treating child sexual abuse. While Dr. Peters’ expertise was child witness’ credibility, in his own opinion, his knowledge of the impact of child sexual abuse did “dovetail” with his own discipline. Dr. Peters also indicated that because his work entailed studying other forms of stress upon children’s credibility as witnesses, in some instances his work actually could provide unbiased and objective findings which a clinician who deals solely with victim impact of child sexual abuse may not be able to find. The military judge conducted voir dire of Dr. Peters and elicited that, although his expertise was “aimed principally at ... the credibility” of child witnesses, Dr. Peters’ “general education, ... research, ... and ... experience ... lends to” him “an expertise in the area of the impact of child sexual abuse.” The military judge therefore found Dr. Peters to be sufficiently qualified to testify as an expert under Mil. R.Evid. 702, Manual for Courts-Martial, United States, 1984. The ultimate opinions Dr. Peters offered were based upon his broad expertise involving the effects of stressful events upon children and the literature he had become familiar with on child sexual abuse. Dr. Peters had also viewed videotapes of interviews of the victims'(two boys, a 4-year-old and a 6-year-old), and he conducted personal interviews with the boys and with their father. Dr. Peters testified on direct examination as to the short-term effects of sexual abuse that he had observed as to the two boys. These included an appreciable amount of fear, guilt, and shame. Dr. Peters also surmised that, based upon his expertise and study of the boys, they were “at a higher risk” of suffering from long-term effects of the abuse, such as depression, anxiety, and sexual maladjustment. Defense counsel then conducted nothing short of a commendable cross-examination of the expert witness. Dr. Peters had to acknowledge that some of the short-term effects which he had observed in the boys may have been caused in part by their own parents having gone through a divorce. With regard to the" }, { "docid": "1290694", "title": "", "text": "viewed Mr. Lanning’s testimony as simply providing his opinion on the language of the e-mail, an area within his expertise. In the context of a judge-alone trial, admission of this expert testimony was not erroneous. The present case is distinguishable from United States v. Byrd, 60 M.J. 4 (C.A.A.F. 2004), where we held that, under M.R.E. 701, the military judge erred by allowing the appellant’s wife, a lay witness, to testify as to her opinion of the appellant’s meaning in various passages of letters he wrote to her. In contrast to the wife of the appellant in Byrd, Mr. Lanning, who was accepted by the court as an expert, had a basis of knowledge for his testimony opining on the meaning of Appellant’s e-mail correspondence. Appellant did not allege at trial, and has not contended on appeal, that Mr. Lanning’s testimony was outside the scope of his expertise. As an expert with specialized knowledge in the field of the behavioral aspects of the sexual victimization of children, Mr. Lanning was qualified to speak to the strategies employed by sexual predators to encourage other individuals to commit sexual offenses against children and to offer his opinion as to whether this e-mail could be viewed as part of such a strategy. 2. Profile Evidence “Profile evidence is evidence that presents a ‘characteristic profile’ of an offender, such as a pedophile or child abuser, and then places the accused’s personal characteristics within that profile as proof of guilt.” United States v. Traum, 60 M.J. 226, 234 (C.A.A.F.2004) (citing United States v. Rynning, 47 M.J. 420, 422 (C.A.A.F.1998)). As we noted in United States v. Banks, 36 M.J. 150, 161 (C.M.A.1992): “Generally, use of any characteristic ‘profile’ as evidence of guilt or innocence in criminal trials is improper.” At trial, defense counsel did not object to any of Mr. Lanning’s expert testimony as constituting improper profile evidence. On appeal, however, Appellant asserts that his testimony amounted to profile evidence. Appellant interprets Mr. Lanning’s testimony as beginning with a description of the typical behavior and fantasies of a generalized group — those who use computers" }, { "docid": "7445890", "title": "", "text": "the case as noncapital is manifest. I agree, as well, that appellant’s failure to object to what I otherwise would hold was improper rebuttal testimony waived his appellate complaint. Mil. R.Evid. 103(a)(1), Manual for Courts-Martial, United States, 1984. Finally, I agree with the majority that Ms. McIntyre properly qualified as an expert witness and that her omission to base her testimony on any knowledge of appellant himself (because she had not interviewed him or investigated his particular background) did not, per se, cause her testimony to be inadmissible. This lack of any insight into appellant personally, however, as well as a broader concern, cause me to disagree with that paragraph in the majority opinion that affirms the military judge’s overruling of appellant’s objection to the scope of McIntyre’s testimony. 34 MJ at 239, First, the record contains no basis for concluding that the witness had the necessary expertise for offering a “prognosis” of anyone’s “high risk of reoffense.” Second, even if she did have sufficient expertise to offer such speculative testimony, her ignorance of any knowledge of appellant as a person gave her an inadequate basis here for her opinions—or, at a minimum, reduced the relevance of her opinions to such a minimal level that the risk of unfair prejudice substantially outweighed its probative value, see Mil.R.Evid. 403. I McIntyre’s formal education, as far as we know, extended only to a bachelor’s degree in psychology and sociology and a master’s degree in social work. Her practical education, through experience as a social worker, involved working with victims and perpetrators of child sexual abuse. Unfortunately, I see nothing at all in the record of trial that offers an adequate basis to conclude that, in light of her formal education or her experience or both, McIntyre’s expertise extends to the complex intricacies of mental health—especially that area of mental health that involves predicting future behavior. Mil.R.Evid. 702 is not a gate of admissibility without any sentries. Only one who qualifies as an expert—by virtue of having “scientific, technical, or other specialized knowledge”—may pass through; even then, such person may pass through only" }, { "docid": "5670434", "title": "", "text": "the Court upheld a trial judge’s ruling disallowing testimony by a defense witness, qualified academically and by experience as a psychologist, as to the “emotional problem” of the Government’s principal witness. Affirmance of the trial ruling was not predicated on the inherent inability of a psychologist to identify and define the nature of mental or emotional conditions, but upon the absence of evidence that the witness possessed the special “training or experience” that would have enabled him to recognize and diagnose “a specific mental ... [state] or character trait and its effect on” an individual’s conduct. Id. at 29. In this case, trial counsel examined Dr. Smith on his academic qualifications and his professional experience over a five-year period as a practicing psychologist in the Army. At the end of that examination, civilian defense counsel stated that he had “no objections as to qualifications.” Trial counsel examined Dr. Groth on his academic and professional experience as a psychologist. Defense counsel questioned him only to determine whether the scope of his expertise extended to “sexual assault of children.” At the conclusion of that inquiry, defense counsel declared that he had “no question about the qualification” of the witness. At the time of trial, the Manual for Courts-Martial, United States, 1969 (Revised edition), provided that “a failure to object on the ground of a lack of” qualifications as an expert constitutes a waiver of the requirement that such qualifications be shown before the witness is permitted to express an opinion on a matter within his specialty. Para. 138e, Manual, supra. Apart from the absence of defense objection, the evidence as to the schooling and experience of Drs. Smith and Groth amply supports the trial judge’s determination that they qualified as persons possessed of “specialized training or experience” in respect to the identification and evaluation of personality traits of humans and the effect of particular traits on individual behavior. Para. 138e, Manual, supra, (carried forward into current Mil.R.Evid. 702, September 1, 1980); see Jenkins v. United States, 307 F.2d 637 (D.C.Cir.1962). Unlike the situation in United States v. Fields, supra, the expert witnesses" }, { "docid": "23406578", "title": "", "text": "activity.” United States v. Espinosa, 827 F.2d 604, 612 (9th Cir.1987), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988); see also United States v. Bosch, 914 F.2d 1239, 1243 (9th Cir.1990); United States v. Andersson, 813 F.2d 1450, 1458 (9th Cir.1987); United States v. Maher, 645 F.2d 780, 784 (9th Cir.1981) (stating that testimony regarding surveillance and counter-surveillance could have come in as expert testimony). Surveillance and counter-surveillance surely constitute “methods and techniques” used in criminal activity and are therefore a proper subject of expert testimony. Rule 702 also requires that the witness testifying as an expert be qualified to do so: “[A] witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Alonso conceded in his brief and at oral argument that the agents were qualified to testify as experts. See, e.g., Appellant’s Br. at 14 (“Defense counsel while acknowledging the officer’s expertise and qualifications to testify as to their limited area of expertise....)”); id. at 16 (“While acknowledging that Agent Operskal-ski and Agent Brenner[] may have possessed the necessary training, experience and qualifications to be qualified by the court as ... expert witnesses]_”). The agents were qualified to testify as experts regarding a topic that was properly the subject of expert testimony. Thus, the district court did not abuse its discretion in allowing agents Operskalski and Brenner to testify as experts regarding surveillance and counter-surveillance. B. The witnesses did not exceed the scope of their expertise. Alonso argues that both witnesses imper-missibly testified outside the scope of their expertise by offering their opinions regarding Alonso’s guilt. In the words of Alonso’s counsel, “they went too far.” It is well established that an expert may not state his opinion about the defendant’s guilt. See United States v. Lockett, 919 F.2d 585, 590 (9th Cir.1990) (“A witness is not permitted to give a direct opinion about the defendant’s guilt or innocence.”); United States v. Kinsey, 843 F.2d 383, 388 (9th Cir.), cert. denied, 487 U.S. 1223, 108 S.Ct. 2882, 101 L.Ed.2d 916 and" }, { "docid": "12143991", "title": "", "text": "traumatic incidents, and he described the psychiatric traits and characteristics of children who had been sexually abused. He further opined that the victim displayed many of these traits and characteristics. At the outset, the Government acknowledged the impropriety of asking Dr. Vanderwalle whether he “believed” the victim’s account of events. During recross-examination, however, defense counsel asked Dr. Vanderwalle about the credibility of the victim’s claims. When the doctor concluded his testimony, the court members presented several questions to the military judge for review. Relying on Mil.R.Evid. 704, which provides that “[tjestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact,” the judge ruled that the following questions could be asked. In your professional opinion do you believe that ... [the child] had a sexual encounter — one or more — with Captain Arruza? Second part. Does ... [the child] believe that she did have a sexual encounter with Captain Arruza? The doctor’s answer to both was in the affirmative. This Court has consistently held that child-abuse experts are not permitted to opine as to the credibility or believability of victims or other witnesses. United States v. Petersen, 24 M.J. 283 (C.M.A.1987); United States v. Deland, 22 M.J. 70 (C.M.A.), cert. denied, 479 U.S. 856, 107 S.Ct. 196, 93 L.Ed.2d 128 (1986); United States v. Cameron, 21 M.J. 59 (C.M.A.1985). This holding is consistent with the decisions of Federal Circuit courts. See United States v. Azure, 801 F.2d 336 (8th Cir.1986). However, the rationale for this rule has varied. For example, in United States v. Cameron, supra at 62, we found that “[t]his testimony goes beyond the area of inquiry permitted by Mil.R.Evid. 608(a),” dealing with evidence of truthful character. Also, we have recognized that the testimony goes beyond the scope of the expertise of the witness who is not trained to be an expert with “specialized knowledge ... to determine if a child-sexual-abuse victim was telling the truth.” United States v. Petersen, supra at 284. It also has been said that to" }, { "docid": "3041140", "title": "", "text": "the agent about the coded drug terms, his familiarity with other drug terms, and the factual aspects of his testimony. Id. We concluded in Farmer that “[i]n light of these safeguards, any risk that the jury could have confused [the agent’s] direct observations with his expert knowledge of the code words was adequately alleviated.” Id.; see also Parra, 402 F.3d at 759-60 (sufficient precautions taken where agent was qualified as an expert, jury was given a cautionary instruction, and defense counsel engaged in rigorous cross-examination of agent regarding his expertise and substance of testimony). Our case has similarities to both York and Farmer. As in Farmer, at the close of the evidence, the district court gave the standard cautionary instruction for opinion testimony requiring special knowledge or skill. Further, many of the questions eliciting Agent Manns’ expert testimony were prefaced with phrases akin to “in your experience,” signaling to the jury when he was relying on his expertise and minimizing confusion over his dual role. The government also properly qualified Agent Manns as an expert and the defendant was not limited in his cross-examination. As in York, though, the district court did not explain Agent Manns’ dual roles to the jury, there was significant blending between his fact and expert witness testimony, and the cautionary instruction was not given when he testified nor was it specific to dual testimony. We are presented with a borderline case. In United States v. Baptiste, 596 F.3d 214, 225 (4th Cir.2010), the court found no plain error where the case fell in the gray area. In that case, the district court did not issue a cautionary instruction specific to the witness’s dual role and the government’s questioning did not separate lay and expert testimony. The district court however ensured that the government laid the foundation for the witness’s expert testimony, instructed the jury that “it’s for you to accept, reject or whatever in terms of whether you accept that testimony or not,” and noted that defense counsel could challenge the witness’s opinions. Id. Based on such facts, the court could not find that the" }, { "docid": "7228524", "title": "", "text": "unless it is “manifestly erroneous.” Bob Willow Motors Inc. v. General Motors, 872 F.2d 788, 797 (7th Cir.1989), citing Liquid Air Corp. v. Rogers, 834 F.2d 1297, 1308 (7th Cir.1987). A. Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness’s testimony. Gladhill v. General Motors Corp., 743 F.2d 1049, 1052 (4th Cir.1984). Though Walker’s area of expertise is experimental psychology, which concerns the study of human behavior and experience, his testimony was limited to whether the design features of this allegedly defective escalator stop button would cause young children to push it more than the stop buttons of other escalators. Walker was qualified to opine on this subject because his area of expertise involves human behavior and perception, and his testimony related solely to the attractiveness and accessibility of the stop button to children. Walker’s testimony concerned three basic points. First he testified brightly colored, red objects attract small children. This elevator’s red stop button was more brightly colored than others he had observed. Hence he concluded this stop button was more attractive to small children than others. Next he testified that a covered stop button is less accessible to children than this uncovered one. Finally he remarked that the more difficult a button is to push the less readily it is actuated by a small child, concluding that this button was unreasonably easy to push. These opinions were simple observations which required their declarant to have only some limited understanding of a human’s visual perception and manual dexterity. Walker, whose specialty is visual perception, was eminently qualified to testify as an expert in this case. B. The plaintiff further asserts that even if qualified, Walker’s testimony should not have been admitted because the subjects upon which he testified were within the ken of the average juror. Under Rule 702 expert opinion concerning matters about which jurors have general knowledge is admissible if the expert opinion “will assist the trier of fact to understand the" }, { "docid": "5670435", "title": "", "text": "of children.” At the conclusion of that inquiry, defense counsel declared that he had “no question about the qualification” of the witness. At the time of trial, the Manual for Courts-Martial, United States, 1969 (Revised edition), provided that “a failure to object on the ground of a lack of” qualifications as an expert constitutes a waiver of the requirement that such qualifications be shown before the witness is permitted to express an opinion on a matter within his specialty. Para. 138e, Manual, supra. Apart from the absence of defense objection, the evidence as to the schooling and experience of Drs. Smith and Groth amply supports the trial judge’s determination that they qualified as persons possessed of “specialized training or experience” in respect to the identification and evaluation of personality traits of humans and the effect of particular traits on individual behavior. Para. 138e, Manual, supra, (carried forward into current Mil.R.Evid. 702, September 1, 1980); see Jenkins v. United States, 307 F.2d 637 (D.C.Cir.1962). Unlike the situation in United States v. Fields, supra, the expert witnesses here were properly qualified. B. The Relevance of the Experts’ Testimony Qualification as an expert and a purpose to testify on a matter within the expert’s “specialty” do not, however, insure the admissibility of what the expert proposes to say. As paragraph 138e of the Manual then provided, the subject of the expert’s testimony must be “on a matter ... involved in the inquiry.” It will be recalled that at the beginning of the testimony of each expert, defense counsel contended that the testimony was not “relevant.” In some respects, however, the testimony of each was quite material to accused’s claim that Sandra had consented to their intercourse. Paragraph 199a, Manual, supra, points out that if a mentally competent and physically able woman “fails to make her lack of consent reasonably manifest ... the inference may be drawn that she did in fact consent.” Dr. Randall testified that Sandra had no “mental or emotional illness”; that her modes of dress and conduct were such as would lead a man to believe she was trying to" }, { "docid": "23406577", "title": "", "text": "district court’s decision to admit expert testimony was not an abuse of discretion, and that the court’s admission of the challenged testimony, to which Alonso did not object at trial, was not plain error. A It was proper to allow the agents to testify as experts. The district court allowed agents Operskalski and Brenner to testify as experts for the purpose of “discussing observations of people, counter-surveillance and surveillance.” ER at 20; see also ER at 23-24. This* topic is a proper subject of expert testimony. Federal Rule of Evidence 702 allows a witness to testify as an expert “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Alonso argues that the issues of surveillance and counter-surveillance are not complex enough to require expert testimony. This court has on several occasions, however, approved the admission of expert testimony by law enforcement officers to explain how a defendant’s conduct conforms to typical “methods and techniques employed in an area of criminal activity.” United States v. Espinosa, 827 F.2d 604, 612 (9th Cir.1987), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988); see also United States v. Bosch, 914 F.2d 1239, 1243 (9th Cir.1990); United States v. Andersson, 813 F.2d 1450, 1458 (9th Cir.1987); United States v. Maher, 645 F.2d 780, 784 (9th Cir.1981) (stating that testimony regarding surveillance and counter-surveillance could have come in as expert testimony). Surveillance and counter-surveillance surely constitute “methods and techniques” used in criminal activity and are therefore a proper subject of expert testimony. Rule 702 also requires that the witness testifying as an expert be qualified to do so: “[A] witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Alonso conceded in his brief and at oral argument that the agents were qualified to testify as experts. See, e.g., Appellant’s Br. at 14 (“Defense counsel while acknowledging the officer’s expertise and qualifications to testify as to their limited area of expertise....)”); id. at 16" }, { "docid": "22571654", "title": "", "text": "S.Ct. 840, 27 L.Ed. 618. See also United States v. Hiss, S.D.N.Y., 1950, 88 F. Supp. 552. Neither these cases, nor any others that have come to our attention, require that he call or hear experts on the question. Necessarily, the judge must have, and does have, considerable discretion in the matter. It has been held not to be an abuse of discretion to refuse to hear such evidence under circumstances quite similar to those before us: United States v. Skillman, 8 Cir., 1971, 442 F.2d 542, 560; United States v. Lee Wan Nam, 2 Cir., 1960, 274 F.2d 863, 864-865. We find no abuse of discretion here. b. Expert Testimony as to Dillon’s Credibility Defendants offered the testimony of a psychiatrist and a psychologist, who were called to testify as to their opinions of Dillon’s competency and reliability as a witness. Each had read over the record of Dillon’s Army psychiatric evaluation and his grand jury testimony, and had-observed Dillon for part of the time when he was testifying in court. On the basis of this familiarity with Dillon, each had formed the opinion that Dillon was a sociopath who would lie when it was to his advantage to do so. The offer was rejected. As we have seen, competency is for the judge, not the jury. Credibility, however, is for the jury — the jury is the lie detector in the courtroom. Judges frequently instruct juries about factors that the jury may or should consider in weighing the veracity of a witness. In this respect it can be said that judges assume that they have certain expertise in the matter, and that juries have less of that expertise than judges. It is now suggested that psychiatrists and psychologists have more of this expertise than either judges or juries, and that their opinions can be of value to both judges and juries in determining the veracity of witnesses. Perhaps. The effect of receiving such testimony, however, may be two-fold: first, it may cause juries to surrender their own common sense in weighing testimony; second, it may produce a trial" }, { "docid": "21779140", "title": "", "text": "business and culture of fashion; and the cultural matrix where' these intersect.” PI. Daubert Opp. Br. 1. LVL XIII asserts that Colman acquired that expertise “through many years spent in a university setting ... supplemented by thousands of hours of research, writing, and publishing on the fashion industry and U.S. intellectual property law, related cultural practices, and symbolic systems associated therewith[,] and years of professional experience spent representing parties in and writing about legal proceedings concerning the fashion industry.” Id. at 8. LVL XIII argues that such expertise “amply qualifies] [Colman] to testify on ... whether the LVL XIII toe plate achieved secondary meaning.” Id. at 9. On this issue, the Court holds for LV. It is well established that even if “a witness qualifies as an expert with respect to certain matters or areas of knowledge, it by no means follows that he or she is qualified to express expert opinions as to other fields.” Nimely, 414 F.3d at 399 n. 13 (citation omitted); see also United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004) (“To determine whether a witness qualifies as an expert, courts compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony.”). Here, although Colman’s experience and education may qualify him as an expert in certain areas of fashion history and intellectual property law, LVL XIII has not shown how such expertise qualifies him to testify as to the central, and largely empirical, issue addressed in his report: whether the TP acquired secondary meaning. “Because the primary element of secondary meaning is ‘a mental association in buyer[s’] minds between the alleged mark and a single source of the product,’ the determination whether a mark or dress has acquired secondary meaning is primarily an empirical inquiry.” Sunbeam Products, Inc. v. W. Bend Co., 123 F.3d 246, 253 (5th Cir.1997) (citation omitted) (emphasis in original). Accordingly, courts have long held that consumer surveys are the most persuasive evidence of secondary meaning. See, e.g., Sports Traveler, Inc. v. Advance Magazine Publishers, Inc. (“Sports" }, { "docid": "5670433", "title": "", "text": "description of a power rape.\" A second hypothetical question, based on Sandra’s testimony of the sexual abuse she had suffered from her father and stepfather, produced an opinion that Sandra had “instilled” in her, as “a personality trait,” a tendency not “to complain or to resist, but to be obedient” to an aggressor, especially “anyone ... [seen] as authority in any fashion.” Dr. Groth conceded that apparent cooperativeness on Sandra’s part could be “misread” by a male “as consenting” to a sexual relationship. Dr. Groth also admitted that the validity of his opinions depended on the correctness of the facts stated in the hypothetical questions. A. The Qualification of a Psychologist to Testify as an Expert on the Mental or Emotional Condition of an Individual American judicial opinion is divided on the qualifications of a psychologist, as distinguished from a psychiatrist, to testify to the mental or emotional state of an individual and the impact of the particular state on the individual’s behavior. See United States v. Fields, 3 M.J. 27 (C.M.A. 1977). In Fields, the Court upheld a trial judge’s ruling disallowing testimony by a defense witness, qualified academically and by experience as a psychologist, as to the “emotional problem” of the Government’s principal witness. Affirmance of the trial ruling was not predicated on the inherent inability of a psychologist to identify and define the nature of mental or emotional conditions, but upon the absence of evidence that the witness possessed the special “training or experience” that would have enabled him to recognize and diagnose “a specific mental ... [state] or character trait and its effect on” an individual’s conduct. Id. at 29. In this case, trial counsel examined Dr. Smith on his academic qualifications and his professional experience over a five-year period as a practicing psychologist in the Army. At the end of that examination, civilian defense counsel stated that he had “no objections as to qualifications.” Trial counsel examined Dr. Groth on his academic and professional experience as a psychologist. Defense counsel questioned him only to determine whether the scope of his expertise extended to “sexual assault" }, { "docid": "1290693", "title": "", "text": "ultimate issue to be decided by the trier of fact.” This rule, however, does not permit the expert to express an opinion on the “ultimate issue” of a case. See United States v. Anderson, 51 M.J. 145, 151 (C.A.A.F.1999). An expert opinion interpreting a document does not necessarily constitute an ultimate opinion on the intent of the document’s author. Although Mr. Lanning used words associated with the concept of solicitation, such as “entice” and “encourage,” he did not provide an opinion on the ultimate issue in this ease — whether Appellant’s actions amounted to solicitation as a matter of law. His testimony, for example, left it for the factfinder to determine whether the language in the e-mail amounted to a serious request. A military judge, who is presumed to know and understand the law, is capable of distinguishing between the evidentiary value of such an opinion and the military judge’s responsibility, as factfinder, to determine the ultimate issue of intent. See Ray, 26 M.J. at 471. In this case, the military judge stated that she viewed Mr. Lanning’s testimony as simply providing his opinion on the language of the e-mail, an area within his expertise. In the context of a judge-alone trial, admission of this expert testimony was not erroneous. The present case is distinguishable from United States v. Byrd, 60 M.J. 4 (C.A.A.F. 2004), where we held that, under M.R.E. 701, the military judge erred by allowing the appellant’s wife, a lay witness, to testify as to her opinion of the appellant’s meaning in various passages of letters he wrote to her. In contrast to the wife of the appellant in Byrd, Mr. Lanning, who was accepted by the court as an expert, had a basis of knowledge for his testimony opining on the meaning of Appellant’s e-mail correspondence. Appellant did not allege at trial, and has not contended on appeal, that Mr. Lanning’s testimony was outside the scope of his expertise. As an expert with specialized knowledge in the field of the behavioral aspects of the sexual victimization of children, Mr. Lanning was qualified to speak to the" }, { "docid": "23109907", "title": "", "text": "an expert opinion on the topic at issue? Fed.R. Evid. 702. The Advisory Committee Note accompanying Rule 702 reads the broad language of the rule to permit expert testimony not only by experts carrying formal credentials such as university degrees and professional memberships but also by so-called skilled witnesses, whose experiences permit them to testify with authority on a given topic. The areas of inquiry that expert testimony may address are similarly broad, including scientific and technical questions as well as any other area of specialized knowledge. An expert may testify in his area of expertise “in the form of an opinion or otherwise.” This much is rote. The more subtle problem, and our caveat, is that the inquiry into the qualifications of an expert should not be a substitute for scrutinizing an expert’s reasoning or methodology. At this stage, the only question for the trial court is whether the expert is generally qualified to render an opinion on the question in issue. Second, if the expert is qualified, are the facts and data that serve as a basis for the expert’s opinion the same type of facts as other experts in the same field reasonably rely upon in forming their opinions? Fed.R.Evid. 703. While testimony based on the personal observations of the expert is preferable, neither the rules nor our cases have insisted on personal examinations. The reports and statements of others such as doctors, nurses, or medical personnel, while not as valuable as testimony based on the expert’s own observations, can provide a reliable basis for the expert’s opinion, at least when reliance on such sources is the custom of the discipline. At the same time, a common-sense skepticism may be warranted when an expert’s factual basis is derived, not from treatment or observation, but from subjective information obtained from counsel or client in preparation for trial. But such skepticism should not necessarily lead us to exclude the expert’s opinion. So long as the facts upon which the expert bases his opinion are those “perceived or made known to the expert at or before the hearing” and are" }, { "docid": "23109906", "title": "", "text": "Federal Rules of Evidence and our cases. We list these inquiries, but in doing so we do not intend that they be applied mechanically. At the same time, they often will naturally lend themselves to sequential application. The reality is that trials are too varied for fixed molds; we construct none today. The first three steps are best understood as threshold requirements that all expert testimony must meet before being deemed admissible. Cf. Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1135 (5th Cir.1985) (construing Rule 702’s qualifications requirement as a threshold inquiry); Slaughter, 919 F.2d at 306-07 (construing Rule 703’s factual basis requirement as a threshold inquiry). Rule 403, on the other hand, provides an overlay—a final mechanism for screening out otherwise admissible testimony whose potential for prejudice substantially outweighs its probative value. Cf. 22 C. Wright & K. Graham, Federal Practice & Procedure, § 5213 at 258-59 (1978). The first question concerns the expert’s qualifications: Is the witness—because of his specialized knowledge, skill, experience, training, or education in the relevant field—qualified to express an expert opinion on the topic at issue? Fed.R. Evid. 702. The Advisory Committee Note accompanying Rule 702 reads the broad language of the rule to permit expert testimony not only by experts carrying formal credentials such as university degrees and professional memberships but also by so-called skilled witnesses, whose experiences permit them to testify with authority on a given topic. The areas of inquiry that expert testimony may address are similarly broad, including scientific and technical questions as well as any other area of specialized knowledge. An expert may testify in his area of expertise “in the form of an opinion or otherwise.” This much is rote. The more subtle problem, and our caveat, is that the inquiry into the qualifications of an expert should not be a substitute for scrutinizing an expert’s reasoning or methodology. At this stage, the only question for the trial court is whether the expert is generally qualified to render an opinion on the question in issue. Second, if the expert is qualified, are the facts and data that" }, { "docid": "23688541", "title": "", "text": "drug dealers use to describe their products and activities. The government moved to qualify Lockhart as “an expert in drug code.” The defendants cross-examined Lock-hart to determine if he was properly qualified as an expert in drug code. On cross-examination, Lockhart testified that he had not taken courses on drug code and that he was aware of no such courses. Lockhart also testified that he had not written articles on interpreting drug code, nor had he taught any classes, although he had instructed other individuals on interpreting drug code. He testified that he had participated in hundreds of narcotics investigations and had been the lead agent on eight of those investigations. After hearing the defendants’ objections to Lockhart’s being certified as an expert in drug code, the district court accepted him as an expert, stating: I am going to accept Agent Lockhart as an expert in the field of drug jargon. I think his training and experience in drug investigations, and clearly there was numerous investigations involving the use of code words and slang by drug traffickers establishing and qualifying him to testify as an expert in this spe-eialize[d] area. It’s unlikely that, without his testimony, the jury would be able to understand the recorded conversation which feature a certain amount of slang or coded language. The district court called back the jury and instructed it on the importance of distinguishing between Lockhart’s expert testimony and his fact testimony. Specifically, the district court directed: The following witness, Agent Lockhart, will testify both as an expert witness and as a fact witness. An expert witness offers an opinion on certain matters based upon special knowledge, skill, experience, training or education. Such witnesses may only render an opinion in their particular field of expertise. And, in this case, the particular field of expertise is drug code. So it’s only in that area that he is allowed to offer his opinion. A fact witness, on the other hand, testifies exclusively as to the facts that were personally experienced or observed by that witness. Regardless of [the] capacity in which Agent Lockhart testifies, you" }, { "docid": "3041139", "title": "", "text": "fact witness regarding the investigations’ progress and events and as an expert witness to assist the jury in understanding the coded drug language contained in recorded conversations. Unlike in York, however, we found sufficient precautions taken where the district court required the government to establish the proper foundation for the agent’s knowledge and the government prefaced the expert testimony by asking the agent the meaning of the coded language “based on his expertise” (the government, however, did not preface each question that elicited the agent’s expert opinion in this way). Id. at 371 & n. 2. We also noted that the court “gave the appropriate cautionary instruction regarding expert testimony, instructing the jury that it could judge that testimony the same way it judges fact witnesses’ testimony, and could ‘[g]ive the testimony whatever weight you think it deservesId. at 371. (Based on our review of the record in Farmer, it appears that this instruction was given after the close of the evidence.) We further reasoned that the district court allowed the defense to extensively cross-examine the agent about the coded drug terms, his familiarity with other drug terms, and the factual aspects of his testimony. Id. We concluded in Farmer that “[i]n light of these safeguards, any risk that the jury could have confused [the agent’s] direct observations with his expert knowledge of the code words was adequately alleviated.” Id.; see also Parra, 402 F.3d at 759-60 (sufficient precautions taken where agent was qualified as an expert, jury was given a cautionary instruction, and defense counsel engaged in rigorous cross-examination of agent regarding his expertise and substance of testimony). Our case has similarities to both York and Farmer. As in Farmer, at the close of the evidence, the district court gave the standard cautionary instruction for opinion testimony requiring special knowledge or skill. Further, many of the questions eliciting Agent Manns’ expert testimony were prefaced with phrases akin to “in your experience,” signaling to the jury when he was relying on his expertise and minimizing confusion over his dual role. The government also properly qualified Agent Manns as an expert" } ]

[ { "docid": "23618872", "title": "", "text": "U.S. 89, 100, 101 S.Ct. 2193, 2200, 68 L.Ed.2d 693 (1981). That discretion, however, must be exercised within the constraints of Rule 23. Id. A district court that premises its legal analysis on an erroneous understanding of the governing law has abused its discretion. U.S. v. Insaulgarat, 378 F.3d 456, 464 (5th Cir.2004); U.S. v. Mann, 161 F.3d 840, 860 (5th Cir.1998). Rule 23 requires the claims of a proposed class to meet several requirements before the class can be certified. The party seeking certification bears the burden of establishing that all requirements of Rule 23 have been satisfied. Berger v. Compaq Computer Corp., 257 F.3d 475, 479-80 (5th Cir.2001). First, the district court must find what has been termed numerosity, commonality, typicality, and representativeness. For class actions seeking money damages, like this one, the district court must make additional findings of predominance and superiority. Rule 23(b)(3). The predominance element requires a finding that common issues of law or fact “predominate over any questions affecting only individual members.” Id. This requirement, although reminiscent of the commonality requirement of Rule 23(a), is “far more demanding” because it “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 2249-50, 138 L.Ed.2d 689 (1997). Finally, a class action must afford the superior means to achieve “fair and efficient adjudication of the controversy.” Rule 23(b)(3). Recognizing the important due process concerns of both plaintiffs and defendants inherent in the certification decision, the Supreme Court requires district courts to conduct a rigorous analysis of Rule 23 prerequisites. Gen’l Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). District courts are required to take a “close look” at the parties’ claims and evidence in making its Rule 23 decision. Amchem, 521 U.S. at 615, 117 S.Ct. at 2246. Class certification hearings should not be mini-trials on the merits of the class or individual claims. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974). At the same time," } ]

[ { "docid": "16051175", "title": "", "text": "that they did have an understanding of this litigation and were receiving regular updates concerning its progress. This is sufficient to establish the adequacy of representation requirement. See In re Cavanaugh, 306 F.3d 726, 737 (9th Cir.2002) (holding that Rule 23 in PSLRA cases does not mandate that lead plaintiffs have “at-the-ready the details of each case in which they are involved____”) 6. Common Questions Predominate In addition to meeting the conditions imposed by Rule 23(a), the parties seeking class certification must also show that the action is maintainable under Fed.R.Civ.P. 23(b)(1), (2) or (3). Hanlon, 150 F.3d at 1022. In this ease, the plaintiffs seek certification pursuant to Rule 23(b)(3), which re quires that common questions must “predominate over any questions affecting only individual members,” and that the class resolution must be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 608, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). This analysis presumes the existence of common issues of fact or law; thus, the presence of commonality alone is not sufficient to fulfill Rule 23(b)(3). Hanlon, 150 F.3d at 1022. In contrast to Rule 23(a)(2), Rule 23(b)(3) focuses on the relationship between the common and individual issues. Id. Micron claims that individual issues of reliance will predominate over common issues. Micron recognizes that plaintiffs are pursuing a fraud-on-the-market claim that presumes reliance, see Basic Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), but argues that the theory does not apply here. Without the benefit of this theory, each plaintiff would have to show reliance, which “effectively would ... prevent[ ] [plaintiffs] from proceeding with a class action, since individual issues then would have overwhelmed the common ones.” Id. at 241, 108 S.Ct. 978. Plaintiffs respond that Micron is inviting the Court to examine the merits, an inquiry that is expressly forbidden by a well-established line of eases. See e.g., Eisen v. Carlisle & Jacquelin, 417" }, { "docid": "2240890", "title": "", "text": "salary satisfaction, discussed supra. Defendants also allege that Weisfeld has a “potential positional conflict” with other proposed class members because of his awareness of the no hire policy during his tenure as a supervisor at Kohl. In considering the parties’ arguments, this Court understands that “the standards for measuring the predominance of common issues under ... 23(b)(3) should not be imputed to adequacy of representation ... because the predominance requirement is more stringent than commonality and typicality.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 185-86 (3d Cir.2001). The Court has considered all arguments and finds that the relatively low threshold for adequacy of representation under Rule 23(a)(4) has been met and will consider the parties’ arguments on this subject further as part of its Rule 23(b)(3) analysis. IY. RULE 23(b)(3) REQUIREMENTS ARE NOT SATISFIED After satisfying the criteria set out in Rule 23(a), a party seeking class certification must also meet the requirements of Rule 23(b)(1), (2), or (3). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Plaintiff seeks class certification under Rule 23(b)(3), which provides that a class action may be maintained if a court finds: (I) “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members” and (ii) “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). A. Predominance The predominance inquiry requires a court to analyze “whether [a] proposed elass[] is sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., 521 U.S. at 623, 117 S.Ct. 2231. The requirement that common questions of law or fact predominate over individual issues does not mean that the existence of individual issues defeats certification; instead, questions affecting only individual members of the class must have lesser overall significance than the issues common to the class, and they must be manageable in a single class action. See Sanneman v. Chrysler Corp., 191 F.R.D. 441, 448 (E.D.Pa.2000) (citation omitted). When conducting the predominance inquiry, a" }, { "docid": "15263439", "title": "", "text": "the other states in this MDL, these parties lack capacity to sue. Therefore, argue defendants, these plaintiffs are not “adequate” representatives. Defendants’ arguments on these two points are not without merit. However, I need not resolve these issues at this time. For reasons set forth below, I conclude that the predominance and superiority requirements of Rule 23(b)(3) bar class certification. Therefore, I will not further address the issues of typicality and adequacy. B. Requirements of Rule 23(b) Once a group of plaintiffs has satisfied the prerequisites of Rule 23(a), the class may only be certified if it meets the requirements of at least one of the categories listed in Rule 23(b). Plaintiffs seek certification under Rule 23(b)(3). Under this rule, the class will only be certified if: the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed.R.Civ.P. 23(b)(3). 1. Predominance “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The standard for certification imposed by Rule 23(b)(3) is more demanding than the commonality requirement of Rule 23(a), and mandates caution, particularly where “individual stakes are high and disparities among class members are great.” Amchem Prods., 521 U.S. at 623, 117 S.Ct. 2231; Bell Atlantic Corp. v. AT & T Corp., 339 F.3d 294, 301-302 (5th Cir.2003). To establish predominance, a plaintiff must show “that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, predominate over those issues that are subject only to individualized proof.” In re Visa Check/Mastermoney Anti-Trust Litigation, 280 F.3d 124, 136 (2d Cir.2001) (quoting Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir.2000)). The nature of the evidence necessary to resolve a question determines whether that question is common or individual. If, to make a prima facie" }, { "docid": "8510841", "title": "", "text": "the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fan and efficient adjudication of the controversy. “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Even if the commonality requirement of Rule 23(a)(2) is satisfied by a common shared experience, “the predominance criterion is far more demanding.” Id. at 624-25,117 S.Ct. 2231. As previously discussed, each class member must demonstrate detrimental reliance in order to be entitled to damages in the TILA action. The necessity of demonstrating detrimental reliance is a sufficient basis to deny class certification in a TILA action. See Perrone v. General Motors Acceptance Corp., 232 F.3d 433, 440 (5th Cir.2000), petition for cert. filed (U.S. Jan. 31, 2001) (No. 00-1251). See also Stout, 228 F.3d at 718 (plaintiff failed to meet the requirement of Rule 23(b) that common issues predominate over individual issues, when case involved fraud and TILA claims which required an individual assessment of each customer’s transaction); Krieger v. Gast, 197 F.R.D. 310, 320 (W.D.Mich.2000) (court refused to certify class under Rule 23(b)(3) because state-law fraud claim required proof of individualized reliance by class members). Assuming that the putative class consists of over 100 members, as Betten suggests, then the determination of each party’s actual damages on a case-by-case basis would defeat the purpose of certifying a class action. “Where numerous mini-trials are necessary to resolve individual questions of reliance and causation, the benefits of a class action disappear.” Yadlosky v. Grant Thornton L.L.P., 197 F.R.D. 292, 297 (E.D.Mich.2000). As the court observed in O’Neil v. Appel, 165 F.R.D. 479, 498 (W.D.Mich.1996), “district courts have refused to certify class actions for the very reason that individual proof of reliance would be necessary, thus creating an unmanageable lawsuit in which numerous ‘mini-trials’ on the issue of reliance and damages would overwhelm the common issues.” Similarly, plaintiff fails to meet the Rule 23(b)(3) requirement that a class action" }, { "docid": "7080565", "title": "", "text": "the “superior method” for achieving a “fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). This requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Weikel v. Tower Semiconductor Ltd., 183 F.R.D. 377, 399 (D.N.J.1998) (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). In analyzing whether the “predominance” and “superiority” criteria are met, the court considers: (A) the interest of members of the Class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the Class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the difficulties likely to be encountered in the management of a class action. See Fed.R.Civ.P. 23(b)(3). In addition, our Rule 23(b) analysis necessarily involves consideration of the elements of Plaintiffs’ cause of action. See Johnston, 265 F.3d at 186-87. Thus, in discussing the elements of “predominance” and “superiority,” we bear in mind that Plaintiffs’ claim under § 10 of the Securities Exchange Act of 1934 and Rule 10b-5 requires proof of: (i) a misstatement or omission of material fact made by the Defendant(s) in connection with Plaintiffs’ purchase of Rent-Way stock, (ii) scienter on the part of the Defendant(s), (iii) reasonable reliance by the class member, and (iv) damage resulting from the misrepresentation or omission. See Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 173 (3d Cir.2001). 1. Predominance Unlike commonality, the requirement of predominance is a “significantly more demanding” standard, “requiring more than a common claim.” Newton, 259 F.3d at 187. In securities fraud class actions predicated on a “fraud on the market” theory, there is a presumption that common issues of reliance predominate over any individual issues. In re Corel Corp. Inc. Sec. Litig., 206 F.R.D. 533, 543 (E.D.Pa.2002) (citing In re Resource America Sec. Litig., 202 F.R.D. 177, 188 (E.D.Pa.2001)). However, PwC contends that the “predominance” requirement cannot be met in this case inasmuch as there are numerous" }, { "docid": "22909479", "title": "", "text": "find erroneous. We proceed to the primary substantive dispute between the parties regarding the proper application of Rule 23(b)(3) to the facts of this case. C. Predominance and Antitrust Impact Rule 23(b)(3) permits class certification only if the questions of law or fact common to class members “predominate” over questions that are individual to members of the class. There is no mathematical or mechanical test for evaluating predominance. See 7AA Wright & Miller, Federal Practice & Procedure § 1778 (3d ed. 2011). The Supreme Court has discussed predominance in broad terms, explaining that the Rule 23(b)(3) “inquiry trains on the legal or factual questions that qualify each class member’s case as a genuine controversy,” with the purpose being to determine whether a proposed class is “sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). While similar to Rule 23(a)’s requirements for typicality and commonality, “the predominance criterion is far more demanding.” Id. at 623-24, 117 S.Ct. 2231. At the same time, the Supreme Court also commented in Amchem: “Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws.” Id. at 625, 117 S.Ct. 2231. We understand the comment to mean that careful application of Rule 23 is necessary in antitrust cases, as in all cases, and that in antitrust cases, “Rule 23, when applied rigorously, will frequently lead to certification.” Robert H. Klonoff, Antitrust Class Actions: Chaos in the Courts, 11 Stan. J.L. Bus. & Fin. 1, 7 (2005) (discussing Amchem); accord, Behrend v. Comcast Corp., 655 F.3d 182, 191 (3d Cir.2011). Rule 23(b)(3)’s predominance requirement is satisfied when “common questions represent a significant aspect of [a] case and ... can be resolved for all members of [a] class in a single adjudication.” Wright & Miller, supra, § 1778. Or, to put it another way, common questions can predominate if a “common nucleus of operative facts and issues” underlies the claims brought by the proposed class. In re Nassau County Strip Search Cases, 461 F.3d 219," }, { "docid": "16267595", "title": "", "text": "The court finds the fact that the plaintiffs have asserted that the Keystone market was efficient is enough at the certification stage to find the market efficient. In response to Grant Thornton’s additional argument that Rule 23(b)(3) could not be satisfied because plaintiffs’ claims involved the application of laws from several different States, the district court acknowledged that the laws of at least six States would apply but concluded, with little further explanation, that the variation in those laws was “minimal.” Pursuant to Federal Rule of Civil Procedure 23(f), Grant Thornton requested permission to appeal the district court’s interlocutory certification order, and on May 23, 2003, we granted that request. This appeal followed. II The underlying principles for certifying a class action are not controverted. A district court may, in its discretion, order that an action proceed as a class action only if it finds that the requirements of Federal Rule of Civil Procedure 23 have been satisfied. Every class action must satisfy the four requirements of Rule 23(a) — numerosity, typicality, commonality, and adequacy of representation, with “the final three requirements ‘tending] to merge.’ ” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 337 (4th Cir.1998) (quoting Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157, n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). In addition, a proposed class must also satisfy the requirements of one of the three Rule 23(b) categories. In this case, the plaintiffs requested certification of the class under Rule 23(b)(3), which requires the court to find (1) that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members” (the predominance requirement), and (2) that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy” (the superiority requirement). Rule 23(b)(3)’s predominance requirement is “far more demanding” than Rule 23(a)’s commonality requirement and “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The" }, { "docid": "22909478", "title": "", "text": "does not give that defendant license to offer irrelevant and unreliable evidence. Second, Northshore argues that we must have meant for American Honda to apply only to decisions granting class certification because a Daubert hearing is unnecessary when certification is denied on grounds not addressed by the expert in dispute. (Northshore Br. 30). But a Daubert hearing is necessary under American Honda only if the witness’s opinion is “critical” to class certification. That requirement is not met if the court decides the motion for class certification on grounds not addressed by the witness. To conclude on this procedural issue, we decline Northshore’s invitation to cut the holding of American Honda in half with a new exception for denials of class certification. The district court should have ruled definitively on plaintiffs’ Daubert motion and objections before ruling on their motion for class certification. Northshore also argues that any error under American Honda was harmless. We disagree. As explained in the following section, the district court frequently discussed Noether’s opinions in reaching the substantive decision that we find erroneous. We proceed to the primary substantive dispute between the parties regarding the proper application of Rule 23(b)(3) to the facts of this case. C. Predominance and Antitrust Impact Rule 23(b)(3) permits class certification only if the questions of law or fact common to class members “predominate” over questions that are individual to members of the class. There is no mathematical or mechanical test for evaluating predominance. See 7AA Wright & Miller, Federal Practice & Procedure § 1778 (3d ed. 2011). The Supreme Court has discussed predominance in broad terms, explaining that the Rule 23(b)(3) “inquiry trains on the legal or factual questions that qualify each class member’s case as a genuine controversy,” with the purpose being to determine whether a proposed class is “sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). While similar to Rule 23(a)’s requirements for typicality and commonality, “the predominance criterion is far more demanding.” Id. at 623-24, 117 S.Ct. 2231. At the same time," }, { "docid": "23155398", "title": "", "text": "the court must decide whether “questions of law or fact common to the members of the class predominate over any questions affecting only individual members,” and whether 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). “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). It is a more demanding criterion than the commonality inquiry under Rule 23(a). Id. at 623-24, 117 S.Ct. 2231. Class-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof. Visa Check, 280 F.3d at 136. PaineWebber argues that fraud claims founded upon oral misrepresentations may not form the basis of a class action unless the misrepresentations are materially uniform in nature. On appeal, plaintiffs argue that liability for the allegedly fraudulent misrepresentations follows from a common course of conduct and, thus, class-wide issues predominate over individualized factual and legal issues. Plaintiffs also assert that the district court abused its discretion in finding that the misrepresentations were not sufficiently uniform to satisfy Rule 23(b)(3)’s predominance requirement. As an initial matter, we must decide whether the district court applied the correct legal standard when it held that oral misrepresentations ■ are not amenable to class certification unless they were materi ally uniform in nature. The Advisory Committee’s Notes speak to this issue directly: It is only where ... predominance exists that economies can be achieved by means of the class-action device. In this view, a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class. On the other hand, although having some common" }, { "docid": "1911273", "title": "", "text": "of $75,000. Our remand to the District Court will require that court, among other things, to ascertain whether all members of the putative class suffered injury in the amount of $75,000, or to limit any class that may be certified to individuals with requisite diversity, as Meritcare requires. Ill We review a District Court’s decision to certify a class action for an abuse of discretion. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 136 (3d Cir.2000); In re The Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 299 (3d Cir.1998). We may find an abuse of discretion “where the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Prudential, 148 F.3d at 299 (citations and internal quotations omitted). A finding is “clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Igbonwa, 120 F.3d 437, 440 (3d Cir.1997) (citations and internal quotations omitted). A In order to be certified, a class must satisfy the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Fed.R.Civ.P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). If these Rule 23(a) requirements are satisfied, the court must also find that the class is maintainable under Rule 23(b)(1), (2), or (3). Fed.R.Civ.P. 23(b). See note 5, supra, and Appendix. Rule 23(b)(3) provides that common questions must predominate over any questions affecting only individual members, and class representation must be superior to other available methods for the fair and efficient adjudication of the controversy. The Rule 23(b)(3) predominance inquiry tests whether the class is sufficiently cohesive to warrant adjudication by representation, and mandates that it is far more demanding than the Rule 23(a)(2) commonality requirement. Am-chem, 521 U.S. at 623-24, 117 S.Ct. 2231. In this case, the District Court found that the Rule 23(a) requirements had" }, { "docid": "23278655", "title": "", "text": "scrap metal market was well-functioning so as to distribute the effect of an antitrust violation equally across class members. The jury accepted Leitzinger’s uniform-impact theory and awarded aggregate damages based on the injury to each class member. That the jury awarded a lower amount than Leitzinger suggested does not mean that it rejected Leitzinger’s uniform-impact theory; instead, the jury may have simply rejected the undercharge amount of 16.4 percent. C. Class Certification Columbia argues that the district court erred in certifying a class and allowing the trial to proceed as a class action because (1) the “predominance of common questions” requirement of Rule 23(b)(3) was not met, and (2) Plaintiffs did not satisfy the notice requirement of Federal Rule of Civil Procedure 23(c)(2)(B). “The district court’s decision certifying the class is subject to a ‘very limited’ review and will be reversed ‘only upon a strong showing that the district court’s decision was a clear abuse of discretion.’ ” Olden v. LaFarge Corp., 383 F.3d 495, 507 (6th Cir.2004) (quoting Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir.2001)). 1. Predominance of Common Questions Columbia contends that Plaintiffs did not meet the “predominance of common questions” requirement of Rule 23(b)(3) because damages could not be calculated on a class-wide basis. In addition to the prerequisites of Rule 23(a) — numerosity, commonality, typicality, and fair representation — Rule 23(b) requires that (1) questions common to the class predominate over questions affecting only individual members, and (2) class resolution is superior to alternative methods for adjudicating the controversy. Fed.R.Civ.P. 23(b)(3). Put differently, the proposed class must be “sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Columbia erroneously assumes that the issue of damages must predominate. To the contrary, “[predominance is a test readily met in certain cases alleging ... violations of the antitrust laws,” Amchem, 521 U.S. at 625, 117 S.Ct. 2231, because proof of the conspiracy is a common question that is thought to predominate over the other issues of the case. 7AA Wright & Miller §" }, { "docid": "23155397", "title": "", "text": "matters for class certification under Rule 23(b)(3) absent proof that the oral misrepresentations were materially indistinguishable. Finding no evidence of uniformity in the present case, the district court, denied the motion for class certification. This appeal followed. DISCUSSION I. Standard of Review We review a district court’s decision regarding class certification under Fed.R.Civ.P. 23 for an abuse of discretion. In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 132 (2d Cir.2001). We are, however, “noticeably less deferential to the district court when that court has denied class status than when it has certified a class.” Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999) (quoting Lundquist v Sec. Pac. Auto. Fin. Servs. Corp., 993 F.2d 11, 14) (2d Cir.1993)) (internal quotation marks omitted). II. The Predominance Requirement and Oral Misrepresentations In order to qualify for class certification under Fed.R.Civ.P. 23(b)(3), plaintiffs in the proposed class must first demonstrate that they satisfy the four requirements of Fed.R.Civ.P. 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. If these criteria are met, the court must decide whether “questions of law or fact common to the members of the class predominate over any questions affecting only individual members,” and whether 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). “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). It is a more demanding criterion than the commonality inquiry under Rule 23(a). Id. at 623-24, 117 S.Ct. 2231. Class-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof. Visa Check, 280 F.3d at 136. PaineWebber argues that fraud claims founded upon oral misrepresentations may not form the basis of a class action unless the misrepresentations are materially uniform in" }, { "docid": "23278656", "title": "", "text": "867 (9th Cir.2001)). 1. Predominance of Common Questions Columbia contends that Plaintiffs did not meet the “predominance of common questions” requirement of Rule 23(b)(3) because damages could not be calculated on a class-wide basis. In addition to the prerequisites of Rule 23(a) — numerosity, commonality, typicality, and fair representation — Rule 23(b) requires that (1) questions common to the class predominate over questions affecting only individual members, and (2) class resolution is superior to alternative methods for adjudicating the controversy. Fed.R.Civ.P. 23(b)(3). Put differently, the proposed class must be “sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Columbia erroneously assumes that the issue of damages must predominate. To the contrary, “[predominance is a test readily met in certain cases alleging ... violations of the antitrust laws,” Amchem, 521 U.S. at 625, 117 S.Ct. 2231, because proof of the conspiracy is a common question that is thought to predominate over the other issues of the case. 7AA Wright & Miller § 1781. Indeed, we have never required a precise mathematical calculation of damages before deeming a class worthy of certification. See Olden, 383 F.3d at 508 (affirming class certification where liability could be determined for the class as a whole, despite individual issues of damages). Thus, even where there are individual variations in damages, the requirements of Rule 23(b)(3) are satisfied if the plaintiffs can establish that the defendants conspired to interfere with the free-market pricing structure. See Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.1988) (“[T]he mere fact that questions peculiar to each individual member of the class action remain after the common questions of the defendant’s liability have been resolved does not dictate the conclusion that a class action is impermissible.”). Here, the district court found that the “allegations of price-fixing and market allocation ... will not vary among class members.” (JA 263 (emphasis added).) Accordingly, the court found that the “fact of damages” was a question common to the class even if the amount of damages sustained by each individual" }, { "docid": "20416265", "title": "", "text": "integrity are insufficient to bar class certification. The Court is aware of no disqualifying conflicts of interest between Herrera and other class members, and it is satisfied that she and her counsel will prosecute the case vigorously. The Court therefore concludes that Herrera is an adequate class representative, and therefore all four requirements of Rule 23(a) have been met. II. Rule 23(b)(3) Since Herrera has satisfied the four prongs of Rule 23(a), the Court now turns to the two requirements of Rule 23(b)(3): whether common questions predominate, and whether adjudicating the case as a class action is superior to other methods. Both requirements were added to the Federal Rules “to cover cases ‘in which a class action would achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.’ ” Amchem. Prods., Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (quoting Fed.R.Civ.P. 23(b)(3) Adv. Comm. Notes to 1966 Amendment) (ellipsis in Amchem Prods.). A. Predominance Predominance, which “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation,” is a “far more demanding” standard than Rule 23(a)’s commonality requirement. Amchem Prods., 521 U.S. at 623-24, 117 S.Ct. 2231. Rule 23(b)(3) requires the Court to find “that the questions of law or fact common to class members predominate over any questions affecting only individual members.” “When common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear justification for handling a dispute on a representative rather than on an individual basis.” In re Infineon Tech. AG Sec. Litig., 266 F.R.D. 386, 395 (N.D.Cal. 2009). Ocwen argues that individualized questions predominate in light of issues relating to (1) whether a person is a member of the class; (2) damages; and (3) Ocwen’s defenses. While some individualized inquiry might be required to address these issues, they do not predominate over the central and common issue in this case — whether the communications Ocwen" }, { "docid": "20421598", "title": "", "text": "it seeks to limit the class to exclude those exposed only to the “3X” misrepresentation. b. Class Certification under Rule 23(b)(3) After satisfying the requirements of Rule 23(a), the proposed class must also satisfy at least one of the three requirements listed in Rule 23(b). The Court has concluded that the prerequisites of Rule 23(a) are satisfied so long as the class excludes those exposed only to the “3X” misrepresentation. Thus, the Court turns to the requirements of Rule 23(b)(3): whether common questions of law or fact predominate among class members and whether the class device offers a superi- or means of resolving the dispute. Because the Court concludes that the requirements of Rule 23(b)(3) are met, the Court refrains from analyzing this case under Rule 23(b)(2). Defendants offer no real argument regarding certification under Rule 23(b)(3) and instead urge this Court, once again, to consider the standing of the unnamed class members. See Quten Opp’n 21. As this Court has resolved that issue in Plaintiffs favor, the Court will not address that argument again here. i. Predominance The predominance inquiry “tests whether proposed class actions are sufficiently cohesive to warrant adjudication by representation,” a standard “far more demanding” than the commonality requirement of Rule 23(a). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). However, predominance is also “readily met in certain cases alleging consumer ... fraud,” id. at 625, 117 S.Ct. 2231. The Court concludes that the central questions in this case predominate over any individual question. Here, the central predominating question is whether Defendants’ marketing statements about “up to 6X BETTER ABSORPTION” or “effectiveness” is materially misleading. Courts in California routinely find that this inquiry focuses on the Defendants’ representations about the product and applies a single, objective “reasonable consumer” standard — not, as Defendants urge, a subjective test that inquires into each class members’ experience with the product. See e.g., Mazza v. Am. Honda Motor Co., 254 F.R.D. 610 (C.D.Cal.2008) (certifying class exposed to misrepresentations in advertising in violation of UCL, FAL, and CLRA); Faigman v. AT & T" }, { "docid": "1911274", "title": "", "text": "Cir.1997) (citations and internal quotations omitted). A In order to be certified, a class must satisfy the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Fed.R.Civ.P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). If these Rule 23(a) requirements are satisfied, the court must also find that the class is maintainable under Rule 23(b)(1), (2), or (3). Fed.R.Civ.P. 23(b). See note 5, supra, and Appendix. Rule 23(b)(3) provides that common questions must predominate over any questions affecting only individual members, and class representation must be superior to other available methods for the fair and efficient adjudication of the controversy. The Rule 23(b)(3) predominance inquiry tests whether the class is sufficiently cohesive to warrant adjudication by representation, and mandates that it is far more demanding than the Rule 23(a)(2) commonality requirement. Am-chem, 521 U.S. at 623-24, 117 S.Ct. 2231. In this case, the District Court found that the Rule 23(a) requirements had been satisfied, and that the conditions of Rule 23(b)(3) were met. LifeUSA appeals only the District Court’s conclusions with respect to Rule 23(b)(3). See Appellant’s Br., at 4-5, 23-24. Thus we are not concerned on this appeal with the Rule 23(b)(1) and (b)(2) subsections. To qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must predominate over any questions affecting only individual members; and class resolution must be superior to other available methods for the fair and efficient adjudication of the controversy.... Rule 23(b)(3) includes a nonexhaustive list of factors pertinent to a court’s ‘close look’ at the predominance and superiority criteria. Amchem, 521 U.S. at 615, 117 S.Ct. 2231 (emphasis added and internal quotation marks omitted). In adding “predominance” and “superiority” to the qualification-for-certification list, the Advisory Committee sought to cover cases “in which a class action would achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other" }, { "docid": "11360129", "title": "", "text": "(b)(2) class action, because these two classes are more cohesive and homogenous, while the monetary remedies sought by a(b)(3) class are often related to disparate merits of individual claims of members with divergent interests. Id. at 413. Rule 23(b)(3) applies where “a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Lead Plaintiff seeks certification under the last provision, (b) (3). A class may be certified under Rule 23(b)(3) when “common questions predominate over any questions affecting only individual members (predominance requirement)” and “class resolution is superior to other available methods for fair and efficient adjudication of the controversy (superiority requirement).” Henry, 199 F.R.D. at 570. 1. Predominance of Common Issues Although in part similar to the commonality requirement, the predominance element is “ ‘far more demanding’ because it ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’” Unger, 401 F.3d at 320, quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). “In order to predominate common issues must constitute a significant part of the individual cases.” Jenkins v. Raymark Indus., 782 F.2d 468, 472 (5th Cir.1986). In examining the predominance requirement of this Rule, the court should “inquire into the substance and structure of the underlying claims without passing judgment on their merits. Although ‘the strength of a plaintiffs claim should not affect the certification decision,’ the district court must look beyond the pleadings to ‘understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.’” Robinson v. Texas Automobile Dealers Assoc., 387 F.3d 416, 421 (5th Cir.2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1710, 161 L.Ed.2d 526 (2005). Where a “common nucleus of operative fact” exists, the predominance factor is met. Henry v. Cash Today, 199 F.R.D. at 572. See also Newton v. Merrill Lynch, Pierce, Fenner & Smith," }, { "docid": "23069710", "title": "", "text": "at 210. Thus, in addition to demonstrating Rule 23’s proper implementation in various legal contexts (securities class actions versus Title VII claims), Hnot also illustrates a second feature of the certification cases that we must address. Because the fraud-on-the-market cases are typically decided under Rule 23(b)(3)’s predominance requirement, a related feature of the circuit court cases considering the proper standard a district court applies, when deciding whether to certify a class, is the difference between cases describing review of evidence under Rule 23(a) and those under Rule 23(b). We are unaware of any argument claiming that a different standard should apply in the two inquiries, and the cases generally treat the precedent as applying equally to both contexts. We do, however, note that the inquiry cannot be divorced from the text of Rule 23, which, of course, requires plaintiffs to make different showings under different parts of the rule. This distinction helps order the doctrine, keeping in mind the different requirements under Rule 23(a) and (b) and how those requirements may play out in a district court’s certification decision. This insight derives from the Supreme Court’s explanation of the predominance test under Rule 23(b)(3). Predominance, the Court explained, “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation,” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), a standard “far more demanding” than the commonality requirement of Rule 23(a), id. at 623-24, 117 S.Ct. 2231. Thus, we would expect that cases in which the parties are contesting facts underlying the Rule 23(b)(3) determination may often require more determinations by the district court than those in which Rule 23(a)(2) is the primarily contested issue. Rule 23(a)(2) is about invoking common questions, see Falcon, 457 U.S. at 158, 102 S.Ct. 2364, whereas Rule 23(b)(3) requires a district court to formulate “some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case,” New Motor Vehicles, 522 F.3d at 20 (internal quotation marks omitted). We thus should not be surprised that a" }, { "docid": "20421599", "title": "", "text": "here. i. Predominance The predominance inquiry “tests whether proposed class actions are sufficiently cohesive to warrant adjudication by representation,” a standard “far more demanding” than the commonality requirement of Rule 23(a). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). However, predominance is also “readily met in certain cases alleging consumer ... fraud,” id. at 625, 117 S.Ct. 2231. The Court concludes that the central questions in this case predominate over any individual question. Here, the central predominating question is whether Defendants’ marketing statements about “up to 6X BETTER ABSORPTION” or “effectiveness” is materially misleading. Courts in California routinely find that this inquiry focuses on the Defendants’ representations about the product and applies a single, objective “reasonable consumer” standard — not, as Defendants urge, a subjective test that inquires into each class members’ experience with the product. See e.g., Mazza v. Am. Honda Motor Co., 254 F.R.D. 610 (C.D.Cal.2008) (certifying class exposed to misrepresentations in advertising in violation of UCL, FAL, and CLRA); Faigman v. AT & T Mobility LLC, 2007 WL 2088561, 2007 U.S. Dist. LEXIS 52192 (N.D.Cal. July 17, 2007) (denying motion to dismiss UCL, FAL, and CLRA claims in putative class action); Smith v. Wells Fargo Bank, N.A., 135 Cal.App.4th 1463, 38 Cal. Rptr.3d 653 (2005) (reversing dismissal of UCL, FAL, and CLRA claims in class action). Additionally, the class members share the following questions: (1) whether Defendants communicated a representation, through packaging and other marketing, that the product offers “up to 6X” times more absorption and effectiveness than competing products; (2) if so, whether that representation was material to individuals purchasing the product; (3) whether the representation was truthful; and (4) the proper method for calculating damages. See Johnson v. Gen. Mills, Inc., 275 F.R.D. 282, 287 (C.D.Cal. 2011). ii. Superiority The second prong of the analysis under Rule 23(b)(3) also requires a finding 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). Given the small size of each class member’s claim, class treatment is not merely" }, { "docid": "4524114", "title": "", "text": "is Rule 23(a)(2)’s commonality requirement. Amchem Prods. v. Windsor, 521 U.S. 591, 624, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In making this determination, the district court must consider variations in state law and must also address how a trial on the merits would be conducted. Castano, 84 F.3d at 740. Rule 23(b)(3) does not require all questions of law or fact be common; it only requires that the common questions predominate over individual questions. Longden, 123 F.R.D. at 556. In deciding whether this requirement is met, courts focus on issues relating to the defendants’ liability. See id. If the liabilities are common to the class, common questions are held to predominate over individual questions. See Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 93 (S.D.N.Y.1981); see also Longden, 123 F.R.D. at 556. “Rule 23 is a remedial rule which should be construed liberally to permit class actions, especially in the context of securities fraud suits, where the class action device can prove effective in deterring illegal activity.” Longden, 123 F.R.D. at 551. Typically, “predominance is readily met in certain cases alleging consumer or securities fraud.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231. However, in securities fraud litigation concerning section 10(b)/Rule 10b — 5, section 20(a), and section 20A, the Plaintiffs must demonstrate that individual issues of reliance will not predominate. See, e.g., Basic v. Levinson, 485 U.S. 224, 241-47, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (discussing, in detail, the applicability of the fraud-on-the-market theory and a rebuttable presumption of reliance in a Rule 10b-5 setting); Affiliated Ute, 406 U.S. at 153-54, 92 S.Ct. 1456 (presuming reliance in fraud action where defendants failed to disclose material information); Fine v. Am. Solar King Corp., 919 F.2d 290, 299 (5th Cir.1990). “[A] fraud class action cannot be certified when individual reliance will be an issue.” Castano, 84 F.3d at 745. The key issue regarding predominance is whether plaintiffs are entitled to a presumption of reliance applicable to all class members. Griffin v. GK Intelligent Sys., Inc., 196 F.R.D. 298, 303 (S.D.Tex.2000). The fraud-on-the-market presumption of reliance “is only available" } ]

[ { "docid": "23438788", "title": "", "text": "taxable property w.as held for any other purpose. It is true that the capital stock of a corporation’ may in a general sense be said to be all the property in which the capital ¿s . invested, so that an exemption of the capital stock, without other words of limitation, may operate to exempt all the property of the corporation. Railroad Companies v. Graines, 97 U. S. 697. But where the purposes for which a cornoration may* hold-property- is specified in connection with the. exemption, the-limitation of taxation designated must'be held to apply-only to-property acquired fór -such purposes. This we -consider-’to be the general doctrine- established by the numerous cases cited by counsel. The case of State v. Commissioners of Mansfield (22 N. J. L. 510), decided by the Supreme. Court of New Jersey, is a leading one. There it appeared that ■the'charter of the Camden and Amboy Railroad and Transportation Company, after reserving certain imposts, declared that-“no-other tax or impost shall be levied or assessed upon the said company.” The charter conferred upon the company the general - power to purchase, receive, and hold real and .personal estate ■; and it had acquired certain houses and lots in the- township of Mansfield, which it let to its - workmen and employes. These-houses and lots having been assessed for taxes by the authorities of the town, the corporation sued out a writ of certiorari to- revise their- action, claiming that houses and lots were exempt-under the provisions of the-charter stated; The court, in deciding the case, said that the general power of .purchasing;-retoeiving,'and holding real and-personal estate could- only be exercised to effect the purpose for which it was conferred by the • government; that the power to construct a railroad and'establish’ transportation lines upon it necessarily included the essential appendages required to complete and maintain such a work and carry on such a business, such as suitable depots, car-houses, water-tanks, houses for switch and bridge tenders, and coal and wood yards for the fuel used in the locomotives; that these were within a fair construction of the exempting clause," } ]

[ { "docid": "2041827", "title": "", "text": "Union Railway Co., 60 Fed. 794, 9 C. C. A. 264, it appears that the defendant company in that case executed a mortgage upon its line of railroad, which is specifically described therein, and also upon ‘the lands, real estate, telegraph lines, railroad tracks, side tracks, bridges, * * * and all other things of whatever kind, belonging or in anywise appertaining, or which have been or may be acquired or provided for use upon or in connection with said railroad, * * * and also all locomotives * * * and other chattels now or hereafter belonging to or appertaining to said railroad, and all property, both real and personal, of every kind and description, which shall hereafter be acquired for use on said railroad, and all the corporate rights, privileges, franchises and immunities, and all things in action, contracts, claims and demands of the said party of the first part, whether now owned or hereafter acquired, in connection or relating to the said railroad.’ Here, it will be observed, the clauses relating to after-acquired property were also limited to the preceding specifically described line of railroad. Yet it was held that the lien of the mortgage covered a leasehold interest in another connecting railroad acquired by the defendant company after the execution of the mortgage. “In the mortgage now being foreclosed, every ‘right’ of the defendant company, acquired after the date of the mortgage by lease from any other railroad company, was by express terms included in the lien of the mortgage, provided such ‘right’ should be ‘connected with or appurtenant to’ the railroad therein specifically described. As already stated, the defendant company has been operating the leased railroads in connection with its own road. It has been in possession of and has been exercising the rights acquired by the leases. These rights, if not appurtenant to, are, within the fair meaning of the language of the mortgage, ‘connected with’ the defendant’s railroad. Unless such construction be adopted, the clause of the mortgage relating to rights acquired by lease seems to have no force or effect whatever. If" }, { "docid": "22063818", "title": "", "text": "How. 25; Barney v. Keokuk, 94 U. S. 324. But public and unoccupied lands, to which the United States havé acquired title, either by deeds of cession from other States, or by treaty with a foreign country, Congress, upder the power conferred upon it by the Constitution, “ to dispose of and make all needful rules and regulations respecting the territory or other property of the United States,” has the exclusive right to control and dispose of, as it has with regard to other property of the United States; and no State can interfere with this right, or embarrass its exercise. United States v. Gratiot, 14 Pet. 526; Pollard v. Hagan, 3 How. 212; Irvine v. Marshall, 20 How. 558, 563; Gibson v. Chouteau, above cited. In McGoon v. Scales, 9 Wall. 23, part of the public lands in Wisconsin being claimed under a sale for State taxes, this court, speaking by Mr. Justice Miller; said: “ The answer to this is, that the land was then owned by the United States, and was not subject to State taxation.” 9 Wall. 27. No reference was made to any act of Congress,, or compact with the State; but the' fact that the land was then owned by the United States was given as the only and conclusive reason why it could not be taxed by the State. So in Tucker v. Ferguson, 22 Wall. 527, in which it was decided that public lands in Michigan, granted by'act of Congress to the State, to be held by the State to, aid in the construction of a railroad, could not be taxed by the • State, Mr. Justice Swayne, delivering judgment, said: “Upon general principles, she could not tax the lands while the title remained ip the United States, nor while she held them as the trustee of the United States, which, in the view of the law, was the same thing.” 22 Wall. 572. The eases in which it has been held that public lands? granted by the United States to a railroad company, continue to be exempt from State taxation so" }, { "docid": "22141866", "title": "", "text": "or contract of the State, notwithstanding ■ that the officer may be described as one of the parties, and may have affixed his individual name and seal. In such cases the State alone is bound by the deed or contract, and can alone claim; its benefits. Thé objection that the deed does not- cover the premises in controversy rests upon the fact that it does not convey the parcels • of land for which the action is brought, by specific -designation and description. Such designation and desciption, though usual, are not always essential. Land will often pass by other terms. Thus a grant of a messuage or a messuage with the appurtenances will carry' the dwelling-house and adjoining buildings, and also its orchard, garden, and curtilage. The true rule on the subject is this, that everything essential to the beneficial use and enjoyment of the property designated is, in the absence of language indicating a different intention on the part of the grantor, to be considered as passing by the' conveyance. . Thus the devise, of a mill and its appurtenances was held by Mr. Justice Story to pass to the devisee not merely the buildingbut all the land under .the mill- and necessary for its use, and commonly used with it. So a conveyance “of a certain tene'ment, being one-half of a.com-mill situated,” on a designated lot “with all the privileges and- appurtenances” was held by the Supreme Court of New Hampshire to pass not only the mill, but the land on which it was situated,-together with such portion- of the water privilege as was essential to its use And the exception of a factory from a mortgage deed was held by th,e Supreme Court of Massachusetts to extend to the land under the factory, and the water privilege appurtenant thereto. In the deed- from the Governor and Auditor the property conveyed is designated as “ all the right-, title, interest, claim, and demand, which the State may hold or possess, in the Northern Division of the Central Canal, &c., and all the rents which may'have become, or shall" }, { "docid": "22814863", "title": "", "text": "a principal, and is necessarily connected with the use and enjoyment of the latter. Harris v. Elliott, 10 Pet. 25, 54; Jackson v. Hathaway, 15 Johns. 447, 455; Linthicum v. Ray, 9 Wall. 241. Of two parcels of land one can never be appurtenant to the other, for though the possession of the one may add greatly to the benefit derived from the other, it is not an incident of the other or essential to the possession of its title or use ; one can be enjoyed independently of the other. As said by the Court of Appeals of New York, in Woodhull v. Rosenthal, 61 N. Y. 382, 390: “ A thing ‘ appurtenant ’ is defined' to be a thing used with and related to or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto .it is appendant or ‘appurtenant.’ It results from this definition that land can never be appurtenant to other land or pass with it as belonging to it. . . . All that can be reasonably claimed is, that the word ‘ appurtenances ’ will carry with it easements and servitudes used and enjoyed with the lands for whose benefit they were, created. Even an easement will not pass unless it is necessary to the enjoyment of the thing granted.” Under the term “ appurtenances,” as used in the mortgage in question, only such property passes as is indispensable to the usé and enjoyment of the franchises of the company. It does not include property acquired simply because it may prove useful to the company and facilitate the discharge of its business. A distinction is made in such cases between what is indispensable to the operation of a railway and what wourd be only convenient. Bank v. Tennessee, 104 U. S. 493, 496. The elevator in question wa^> at all times under an independent management and was used in the same manner as any other warehouse not on the premises of - the railway company to which it sent cars for freight. . The court, therefore," }, { "docid": "2041825", "title": "", "text": "appurtenant to the above described and hereby mortgaged railroad and routes.’ Thirdly, the description embraces ‘all and every franchise [including the franchise to be a corporation], right, privilege and easement of whatsoever kind or nature, now or hereafter at any time or howsoever owned, acquired, possessed, enjoyed or exercised by the railroad company, either by virtue of any act of the Legislature of the State of New Jersey, or * * * of any contract or lease between the railroad company and any other railroad or other corporation * * * which are or may be connected with or appurtenant to the above described and hereby mortgaged railroad and routes.’ The description further embraces ‘all and singular the liberties, privileges and franchises connected with or relating to the said railroad, routes and real and personal property hereto [hereby] mortgaged * * * with all and ’ singular the * * * hereditaments, easements and appurtenances to the above described and hereby mortgaged railroad routes and real and personal property, franchises and premises, or any part thereof, now or hereafter belonging or in any wise appertaining.’ “The defendant insists that these clauses relating to future-acquired property are limited to the railways specifically described in the mortgage and to properties appurtenant to such specifically described railways, and that they do not include subsequently acquired leases or stocks, or even the line of railroad constructed through Belmar. To determine the question, the meaning of the words ‘connected with or appurtenant to’ must be ascertained. The phrases ‘connected with’ and ‘appurtenant to’ are not necessarily synonymous. The railroad of the West End & Long Branch Railway Company is physically connected with that of the defendant company at the northerly end of the latter company’s main line, and the railroad of the Seashore Electric Railway Company is physically connected with that of the defendant company at the southerly end of the latter company’s main line. The defendant company secured leases upon these two lines of railroad and has been operating them in connection with its own road. In Columbia Finance & Trust Co. v. Kentucky" }, { "docid": "22100117", "title": "", "text": "not extend to real estate of a public corporation, mortgaged with its franchise to acquire, hold, and use property for public purposes, and whose chief value depends-upon its being so used and appropriated. The difference between real estate, so acquired held, and used, and real estate which may, at law, be sold under execution, is well illustrated in Gue v. Tide Water Canal Co., 24 How. 257. In that case it appeared that an execution was levied upon a house and lot, sundry canal locks, a wharf-boat, and several lots, the property of the canal company, chartered under the laws of Maryland for the construction of a canal from Havre de Grace, in that State, to the Pennsylvania line. The property so' levied upon was admitted to be necessary to the uses and working of the canal, which' was a public improvement, and a great thoroughfare of trade.’ It was of little value apart from the franchise to take tolls, and if sold separately under execution, the franchise to take tolls, said Mr. Chief Justice Taney) speaking for the court, would not have passed to the purchaser. It was consequently ruled that the real-estate there in- controversy could not be seized and sold under fieri facias, and, consistently with the rights of stockholders and creditors, could not be sold separately from the franchise from which was derived its chief value. ■ The laws of the State of Illinois having permitted the Chester and Tamaroa Coal and Railroad Company to mortgage its franchises 'and property as an entirety; it was, we think; the duty of'the court to decree-the sale, ,as an entirety, of the whole property, so mortgaged, without reference to the local statutes upon the subject of redemption. Real estate, thus mortgaged with the franchises of the' company, is of necessity relieved from the operation of that statute. There may possibly be cases- in which real estate, of an ordinary kind, owned and mortgaged. by'a railroad corporation, cannot be sold by decree of court, except subject to the right of redemption; as when it is not used for necessary railroad" }, { "docid": "22930521", "title": "", "text": "Mr. Justice Brewer delivered the opinion of the court. The first mortgage had the “ after-acquired property ” clause in it. It is settled that such a clause is valid, and that thereby the mortgage covers not only property then owned by the railroad company, but becomes a lien upon ail property subsequently acquired by it which comes within the description in the mortgage. Pennock v. Coe, 23 How. 117; Dunham, v. Cincinnati, Peru &c. Railway, 1 Wall. 254; Galveston Railroad v. Cowdrey, 11 Wall. 459; Thompson v. Valley Railroad Company, 132 U. S. 68. And this is true, not only as to property to which it acquires the legal title, but also as to that to which it acquires only a full equitable title. Toledo &c. Railroad Co. v. Hamilton, 134 U. S. 296. Where a company is incorporated to construct a railroad between two cities named as its termini, a mortgage given by it which, as expressed, is upon its line of railroad constructed or to be constructed between the named termini, together with all the stations, depot grounds, engine-houses, machine-shops, buildings, erections in any way' now or hereafter appertaining unto said described line oL railroad, creates a lien upon its terminal facilities in those cities, and is not limited to so much of' the road as is found between the city limits of those places. The stations, depot grounds, etc., in the terminal cities appertain to the railroad as fully as similar structures in places intermediate those termini. In the absence of restrictive words, such is the natural import, and therefore must be adjudged the intent and scope of a mortgage containing that description.. This first mortgage contains not only the general terms referred to, but after them, and as if it were to avoid any possible doubt, adds: “And all. its-depot grounds, yards, sidings, turnouts, sheds, machine-shops, leasehold rights, and other terminal facilities now or hereafter owned by the said party of the first part.” It would be difficult to make language more-full, accurate and descriptive. Willink v. Morris Canal Co., 3 Green Ch. (4 N." }, { "docid": "16482901", "title": "", "text": "right to the land covered by the wharf. Its language is that it grants the right “of using the wharf built” by the Lowndes, referring clearly to the structure then erected. And the right to use the wharf is limited to that of mooring to it the ships and vessels of the grantees, for loading and unloading, and of passing over it goods imported or exported by them. The deed con-* tains no provision for keeping the wharf in repair, or for building a new one in case of its destruction, or any clause indicating an intention to confer any right or privilege of greater duration than that of the structure then existing. Nor was the right to use the wharf made appurtenant to the twenty-feet lot, situated on the north side of Water Street, by being conveyed to the Johns in the same instrument. It was in no way connected with the enjoyment or use of the lot, and a right not thus connected cannot be annexed as an incident to land so as to become appurtenant to it. The right was not attached as an incident to any estate; it passed by a grant in gross, and was necessarily limited in its duration by the existence of the structure with which it was connected. Judgment aeeirmed. Ackroyd v. Smith, 10 Com. Bench, 164." }, { "docid": "16482900", "title": "", "text": "Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows: We do not deem it important to consider whether the conveyance to Smith from Templeman, the trustee, was authorized by the power contained in the deed to the latter, or whether the subsequent conveyances under Smith oper ated to vest a good title to the land upon which the present wharf is situated, or such a right of wharfage as to authorize the construction and exclusive use of the present wharf. The possession of the defendant under color and with claim of title is sufficient to put the plaintiff upon proof of a better title to the wharf, or, at least, of an equal right with the defendant to its use. And such proof he has not produced. The deed of the two Lowndes to the Johns in 1804, under which he derives all the claim he possesses, only conferred a right to the use of the wharf then in existence, and not any general right of wharfage, or any right to the land covered by the wharf. Its language is that it grants the right “of using the wharf built” by the Lowndes, referring clearly to the structure then erected. And the right to use the wharf is limited to that of mooring to it the ships and vessels of the grantees, for loading and unloading, and of passing over it goods imported or exported by them. The deed con-* tains no provision for keeping the wharf in repair, or for building a new one in case of its destruction, or any clause indicating an intention to confer any right or privilege of greater duration than that of the structure then existing. Nor was the right to use the wharf made appurtenant to the twenty-feet lot, situated on the north side of Water Street, by being conveyed to the Johns in the same instrument. It was in no way connected with the enjoyment or use of the lot, and a right not thus connected cannot be annexed as an incident to land so as" }, { "docid": "22038883", "title": "", "text": "arose out of. the very relation of his lot to the street in front of it, rand that these rights, whether the bare fee of the streets was in the lot owner or in the city, were rights of property, and as such ought to be and were as sacred from legislative invasion as his right to the lot itself.” 2 Dill. Mun. Corp., 4th ed., §§ 5876, 656a. So, in Lewis on Eminent Domain, where the adjudged cases are referred to and examined: \"When the owner of a tract of land lays the same out into lots and streets and sells the lots, the purchasers of such lots acquire as appurtenant thereto a private right of way and access over the streets. This private right arises without an express grant and in the absence of any statute. The law presumes that the parties had in mind the advantages to be derived from the use of the proposed streets, and implies a right to such use as a part of the grant. . . . Therefore, in the case of such a grant, there arises by operation of law a private right to use the streets in connection with the lots of each proprietor, which is as inviolable as any other right of property. . . . The existence of these private rights and easements is, therefore, entirely independent of the mode in which the highway is established, or of the estate or interest which the public acquires in the soil of the street, whether a fee or less.” Lewis on Eminent Domain, 2d ed., § 91/ and authorities cited in notes. See, also, Newell v. Sass, 142 Illinois, 104. But the right of the railroad company, as abutting owner and the rights of passengers are not, in their nature, paramount to the rights of others of the general public to use the sidewalk in question in legitimate ways and for legitimate purposes. Licensed hackmen and cabmen, unless forbidden by valid local regulations, may, within reasonable limits, use a public sidewalk in prosecuting their calling, provided such use is not" }, { "docid": "22990962", "title": "", "text": "with the. general words, “ all the present and in future to be acquired property of, or in any manner pertaining to, the Linneus Branch, . . . and all the right, title, and interest . . . therein,” there would be more force in. the position taken by'the appellant. But the rules established for the interpretation of written instruments will not j.ustify us in detaching these general words from those of an explanatory character which immediately follow in the same sentence. The subsequent phrase, “ that is to say,” followed by a detailed description of the different' kiilds óf property which are embraced by tbe general words quoted, indicates that the mortgage was not intended to embrace every conceivable possession and right belonging to the railway company, but only the road and its adjuncts and appurtenances. It specifies ■ different kinds of property, some . of which would enter into the construction of the branch road, and some 'of which would necessarily be employed in its maintenance after completion. The “rights, privileges, and franchises-” mortgaged were, it seems to us,, only such as had direct connection with the management and operation of. the road after it was constructed and put in use as a public highway. There was no purpose, we think, -to pass to the mortgagee any interest whatever in municipal subscriptions which had been previously obtained and accepted by the company for the purpose of raising money to build the road. The bonds which Sullivan County placed in the hands of McCullough for delivery to' the company as the work progressed were certainly more valuable, and could- have been- more readily utilized for;¡purposes of construction, than a like number of bonds issued by the railway company. We ought not to presume, from the general language used, that the railway company intended to cripple itself in the use of salable municipal securities in order to place upon the market its own bonds of less value. Our conclusion is that the mortgage was not intended to deprive the mortgagor of the privilege of using, in any way it desired," }, { "docid": "2041824", "title": "", "text": "authority for its execution was given, will not exclude them from the lien thereof. “The mortgage is inartistically drawn. Whether it was the intention of the defendant company to subject to the lien of its mortgage after-acquired properties like those above mentioned must be ascertained from an examination of the various clauses in the mortgage concerning after-acquired properties. On such examination it appears that the mortgagor conveyed to the mortgagee ‘all the right, title and interest of the railroad company [the mortgagor] now owned, or hereafter in anywise acquired by it, in and to all and singular the lines of railroad and railroad tracks and routes and other property, real and personal, hereinbelow described.’ Then follows, first, a specific description of the lines of railroad owned by the defendant company on July I, 1896. Secondly, the description embraces ‘all lands and real estate * * * buildings, improvements, tenements and hereditaments, now owned by the railroad company, or hereafter at any time or howsoever acquired by it, which are or may be connected with or appurtenant to the above described and hereby mortgaged railroad and routes.’ Thirdly, the description embraces ‘all and every franchise [including the franchise to be a corporation], right, privilege and easement of whatsoever kind or nature, now or hereafter at any time or howsoever owned, acquired, possessed, enjoyed or exercised by the railroad company, either by virtue of any act of the Legislature of the State of New Jersey, or * * * of any contract or lease between the railroad company and any other railroad or other corporation * * * which are or may be connected with or appurtenant to the above described and hereby mortgaged railroad and routes.’ The description further embraces ‘all and singular the liberties, privileges and franchises connected with or relating to the said railroad, routes and real and personal property hereto [hereby] mortgaged * * * with all and ’ singular the * * * hereditaments, easements and appurtenances to the above described and hereby mortgaged railroad routes and real and personal property, franchises and premises, or any part" }, { "docid": "22815067", "title": "", "text": "Upon a similar principle it was held in Tucker v. Ferguson, 22 Wall. 527, that a tax upon lands owned by a railway company and not used, nor necessary, in working the road and in the exercise of its franchise, was not unlawful, though the charter had provided for a certain tax upon the railroad company, and had enacted that such tax should be in lieu of all other taxes to be imposed within the State. See also West Wisconsin Railway v. Supervisors, 93 U. S. 595. Nor does it follow, from the fact that the contract evidenced by the charter cannot be impaired, that the power of the legislature over such charter is wholly taken away, since statutes which operate only to regulate the manner in which the franchises are to be exercised, and which do not interfere substantially with the enjoyment of the main object of the grant, are not open to the objection of impairing the contract. A familiar instance of this class of legislation is that enacted under what is known as the police power. In virtue ■of this the State may prescribe regulations contributing to the comfort, safety and health of passengers, the protection •of the public at highway crossings or elsewhere, the security of owners of adjacent property, by requiring, the track to be fenced, and such appliances to be annexed to the engines as shall prevent the communication of fire to neigh: boring buildings. Cooley Prin. Const. Law, 321. This power, as was said by Mr. Justice Miller in the Slaughter-house cases, 16 Wall. 36, 62, is and must be, from its very nature, incapable of any very exact definition or limitation.. “ Upon it depends the security of social order, the life and health of the citizen, the comfort of existence in a thickly populated community, the enjoyment, of private and social life, and the beneficial use of property.” The following cases show to what extent and for what purposes this power may be exercised: Slaughter-house cases, 16 Wall. 36; Fertilizing Company v. Hyde Park, 97 U. S. 659; Beer Company v." }, { "docid": "22063819", "title": "", "text": "subject to State taxation.” 9 Wall. 27. No reference was made to any act of Congress,, or compact with the State; but the' fact that the land was then owned by the United States was given as the only and conclusive reason why it could not be taxed by the State. So in Tucker v. Ferguson, 22 Wall. 527, in which it was decided that public lands in Michigan, granted by'act of Congress to the State, to be held by the State to, aid in the construction of a railroad, could not be taxed by the • State, Mr. Justice Swayne, delivering judgment, said: “Upon general principles, she could not tax the lands while the title remained ip the United States, nor while she held them as the trustee of the United States, which, in the view of the law, was the same thing.” 22 Wall. 572. The eases in which it has been held that public lands? granted by the United States to a railroad company, continue to be exempt from State taxation so long as the costs of survey have not been paid and patents have not been issued, stand upon equally broad ground. Railway Co. v. Prescott, 16 Wall. 603, 608; Railway Co. v. McShane, 22 Wall. 444, 462; Northern Pacific Railroad v. Traill County, 115 U. S. 600, 610. And the reason why, after lands have been duly entered at the land office, and everything has been done to entitle the party to á patent, they have by long usage, confirmed by the decisions of this court, been considered, before the patent is actually taken out, as subject to State taxation, is that the United States have nothing but the naked legal title, and the lands are in truth no longer public property, but have become' private property. Carroll v. Safford, 3 How. 441; Witherspoon v. Duncan, 4 Wall. 210; Deffeback v. Hawke, 115 U. S. 392, 405. Even in the courts of the several States, the decided and increasing preponderance of authority is in favor of the absolute exemption of all property of the United" }, { "docid": "2041831", "title": "", "text": "after-acquired property to such property as is connected with or appurtenant to the railroad lines specifically described, and thus to limit the language of the bonds, the rights acquired by the two leases from the West End & Long Branch Railroad Company and the Seashore Electric Railway Company must, in view of all the facts above stated, be deemed connected with or appurtenant to the specifically described railroad lines of th'e defendant company, and to be subject to the lien of the mortgage.” It remains to consider the lien of the mortgage, as respects the Asbury Park & Seagirt Railway Company. The railway of this company, as we have seen, is an important link in the system or line of the defendant company between Pleasure Bay Banding and the terminus of the Belmar Extension. Some time prior to March, 1898, a reorganization committee of the bondholders of the Asbury Park & Belmar Street Railway Company had, under a decree of the United States Circuit Court, acquired title to the property rights and franchises of said company, and to its railroad and routes. On the date last mentioned, the directors of the defendant company passed the following resolution, for the purchase of the property held by this reorganization committee: “Whereas, Messrs. Acton O. Hartsborne and G. B. M. Harvey, acting as a reorganization committee and in representing themselves and other owners-of the first and second mortgage-bonds of the Asbury Park & Belmar Street Railway Company, have acquired title under a decree of the United States Circuit Court to the property, rights and franchises of the Asbury Park and Belmar Street Railway Company, and to its railroad and routes; and “Whereas said reorganization committee have offered to dispose of the same to this company; be it therefore “Resolved, that this company purchase from said reorganization committee the property above described upon the following terms: “First. This company to execute and deliver to the Monmouth Trust & Safe Deposit Company, as trustee, a purchase-money first mortgage of the amount of $50,000 upon the railroad and other property so purchased, securing fifty twenty-year gold" }, { "docid": "2041826", "title": "", "text": "thereof, now or hereafter belonging or in any wise appertaining.’ “The defendant insists that these clauses relating to future-acquired property are limited to the railways specifically described in the mortgage and to properties appurtenant to such specifically described railways, and that they do not include subsequently acquired leases or stocks, or even the line of railroad constructed through Belmar. To determine the question, the meaning of the words ‘connected with or appurtenant to’ must be ascertained. The phrases ‘connected with’ and ‘appurtenant to’ are not necessarily synonymous. The railroad of the West End & Long Branch Railway Company is physically connected with that of the defendant company at the northerly end of the latter company’s main line, and the railroad of the Seashore Electric Railway Company is physically connected with that of the defendant company at the southerly end of the latter company’s main line. The defendant company secured leases upon these two lines of railroad and has been operating them in connection with its own road. In Columbia Finance & Trust Co. v. Kentucky Union Railway Co., 60 Fed. 794, 9 C. C. A. 264, it appears that the defendant company in that case executed a mortgage upon its line of railroad, which is specifically described therein, and also upon ‘the lands, real estate, telegraph lines, railroad tracks, side tracks, bridges, * * * and all other things of whatever kind, belonging or in anywise appertaining, or which have been or may be acquired or provided for use upon or in connection with said railroad, * * * and also all locomotives * * * and other chattels now or hereafter belonging to or appertaining to said railroad, and all property, both real and personal, of every kind and description, which shall hereafter be acquired for use on said railroad, and all the corporate rights, privileges, franchises and immunities, and all things in action, contracts, claims and demands of the said party of the first part, whether now owned or hereafter acquired, in connection or relating to the said railroad.’ Here, it will be observed, the clauses relating to" }, { "docid": "22814862", "title": "", "text": "reached by crossing the tracks of another company. Had the elevator been constructed upon property covered by the mort-, gage, it might have been contended that it fell, to the extent' of the one-sixth interest, under the mortgage, as one of the depots of the company. The term “ depot ” in the mortgage is not necessarily limited to a place provided for the convenience of passengers while waiting for the arrival or departure of trains. It applies also to buildings- used for the receipt and storage of freight, which, when received, is to be safely kept until forwarded by the cars of the company or delivered to the owner or consignee. Such a building, whether existing at the time of the mortgage, or constructed afterwards upon the property of the company covered by it, may pass under the mortgage as one of its depots, but will not pass as an appurtenance to the property previously existing. A thing is appurtenant to something else only -when it stands in the relation of an incident to a principal, and is necessarily connected with the use and enjoyment of the latter. Harris v. Elliott, 10 Pet. 25, 54; Jackson v. Hathaway, 15 Johns. 447, 455; Linthicum v. Ray, 9 Wall. 241. Of two parcels of land one can never be appurtenant to the other, for though the possession of the one may add greatly to the benefit derived from the other, it is not an incident of the other or essential to the possession of its title or use ; one can be enjoyed independently of the other. As said by the Court of Appeals of New York, in Woodhull v. Rosenthal, 61 N. Y. 382, 390: “ A thing ‘ appurtenant ’ is defined' to be a thing used with and related to or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto .it is appendant or ‘appurtenant.’ It results from this definition that land can never be appurtenant to other land or pass with it as belonging to it. . . ." }, { "docid": "2041828", "title": "", "text": "after-acquired property were also limited to the preceding specifically described line of railroad. Yet it was held that the lien of the mortgage covered a leasehold interest in another connecting railroad acquired by the defendant company after the execution of the mortgage. “In the mortgage now being foreclosed, every ‘right’ of the defendant company, acquired after the date of the mortgage by lease from any other railroad company, was by express terms included in the lien of the mortgage, provided such ‘right’ should be ‘connected with or appurtenant to’ the railroad therein specifically described. As already stated, the defendant company has been operating the leased railroads in connection with its own road. It has been in possession of and has been exercising the rights acquired by the leases. These rights, if not appurtenant to, are, within the fair meaning of the language of the mortgage, ‘connected with’ the defendant’s railroad. Unless such construction be adopted, the clause of the mortgage relating to rights acquired by lease seems to have no force or effect whatever. If there be doubt as to the true meaning of this clause, or of any other of the clauses relating to after-acquired property, the construction put upon them by the parties to the mortgage at the time of its execution, and the acts done by those parties, may be resorted to as aids in ascertaining their true meaning. 1 Gr. Ev. § 293; Bradley v. Packet Co., 13 Pet. 89, 10 L. Ed. 72; Reed v. Merchants’ Mutual Ins. Co., 95 U. S. 23, 24 L. Ed. 348. And in Central Trust Co. v. Kneeland, 138 U. S. 414, 11 Sup. Ct. 357, 34 L. Ed. 1014, the court resorted to the language of the prospectus, issued for the purpose of inviting investors to purchase the bonds of the Toledo, Delphos & Burlington Railroad Company, and to the language of the resolution of the directors of the company, authorizing the execution of the mortgage intended to secure those bonds, for the purpose of confirming the construction given by the court to the after-acquired property clause of" }, { "docid": "17043974", "title": "", "text": "whether it is the design of the Government, on taking possession of the wharves and' buildings belonging to the appellants, to continue them in the use of the public or to supersede them by other improvements. Whatever may be the course pursued in that respect, it should not deprive the appellants of the right conferred upon them by the act of Congress to have the value of their respective rights, titles, interests or claims ascertained and awarded them. As to 'the method to be pursued in valuing property of so peculiar a character, the cases of The Monongahela Nav. Co. v. United States, 148. U. S. 312, and Hetzel v. Baltimore & Ohio Railroad, 169 U. S. 26, may be usefully referred to. While, therefore, we affirm the decree of the court below as to the claims of the Marshall heirs, and as to the Kidwell patent, and as to the several claims to riparian rights as appuriena/nt to lots bounded on the south by Water street, we remand the case to the court below for further proceedings in accordance with this opinion. Mr. Justice White, with whom concurred Mr. Justice Peckham, dissenting. The court holds that the owners of lots fronting on the Potomac River, who are impleaded in this record, have no riparian rights appurtenant or attached to such lots, and that they never possessed rights of that description. This conclusion rests primarily upon a finding of fact, that is, that it was the intention of the founders of the city that a street should bind the city on the entire water front, which street should be the exclusive property of the public, thus cutting off all the lot owners facing the river from connection therewith. Applying to this premise of fact the legal, principle that where property is separated from the water by land belonging to some one else, no riparian rights attach to the land of the former, it is held that the lot owners before the court have no- riparian privileges which the Government of the United States is in any way bound to respect." }, { "docid": "2041845", "title": "", "text": "the railroad company, in and to the same and each and every part and parcel thereof, with the appurtenances.” As shown in the opinion of the court below, all beneficial interest and ownership in the franchises and property of the Belmar Company, were purchased by and resided in the defendant company, the bare legal title being held by the Asbury Park & Seagirt Railroad Company, as trustee, for the benefit and purposes of the defendant company, which had paid the entire purchase price, and which remained the real equitable owner. The mortgage of July 1, 1896, both expressly and impliedly, covered equitable interests in after-acquired property appurtenant to or connected with the line of railroad controlled or operated by it. As soon as this equitable interest and ownership in the Belmar property was acquired, as hereinbefore described, by the defendant company, the lien of its mortgage attached itself thereto and remained upon it, both before, and after the legal title had been placed in the Asbury Park & Sea-girt Company. Toledo, Delphos, etc., Railroad v. Hamilton, 134 U. S. 296, 10 Sup. Ct. 546, 33 L. Ed. 905; Central Trust Co. v. Knee-land, 138 U. S. 414, 11 Sup. Ct. 357, 34 L. Ed. 1014; Bear Lake Irrigation Co. v. Garland, 164 U. S. 1,15,17 Sup. Ct. 7, 41 L. Ed. 327. To hold that this were not so, would be to work a fraud upon the holders of these bonds, who were notified in the bonds themselves, and the declaration is recited in the mortgage, that they were secured by a mortgage conveying to the trustee (the complainant company) “all the certain railroad and other property, real and personal, and franchises of said railroad company, whether now owned or hereafter acquired by it.” And not only were the holders of these bonds and all other creditors so notified, but, in an especial manner was the complainant company, the trustee for these bondholders, so notified, by this language in the bonds that itself had issued, and in the mortgage that it held in trust to secure the same. Moreover, this" } ]

[ { "docid": "23319081", "title": "", "text": "denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). King argues, however, that singling out the reread testimony placed too much emphasis on it, with the rapidly ensuing verdicts as an indication of the prejudice. Appellant King cites two cases in which the refusal to reread testimony was found not to have been an abuse of the trial court’s discretion, both decisions noting a danger of overemphasis in rereading only portions of testimony. Baxter, supra; United States v. De Palma, 414 F.2d 394 (9th Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690 (1970). This Court has also upheld the replaying of tape-recorded evidence two times during deliberation. United States v. Puchi, 441 F.2d 697 (9th Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971). We have been directed to no case where this Court has found an abuse in either the granting or refusing of the request by the trial court, and we find no abuse here. The Government argues that the segments reread constitute only a small part of the evidence against King. King replies (pointing to little else) that the speed with which the jury reached its verdict after hearing the testimony a second time attests to its overemphasis. We think that other conclusions not inconsistent with careful consideration of the evidence as a whole are possible. The jury may have already reached a verdict and merely desired a confirming clarification on one point; the clarification on a point may have been the “straw that broke the camel’s back” in swaying a verdict properly based on the totality of the evidence. The discretion granted the trial judge is large, De Palma, supra, and determination of whether that discretion was abused must turn on the circumstances of the individual case. Baxter, supra. We cannot say that the trial judge abused his discretion. E. Congress’ Constitutional Authority under 21 U.S.C. § 959 Appellants King (Counts Three and Four) and Powell (Counts Three, Four, and Five) were both convicted of unlawful distribution in Japan of heroin intended for importation into" } ]

[ { "docid": "9543008", "title": "", "text": "Garay also was convicted of committing essentially the same act as a citizen of the United States on board a vessel, a violation of 21 U.S.C. § 955a(b). All defendants were acquitted on a charge of importation. We affirm the convictions. I Appellants first question whether the government proved, with properly admitted evidence, all elements of the crime of which they were convicted. Each appellant was charged with violating 21 U.S.C. § 955a(c) (now incorporated into 46 U.S.C. App. § 1903), which as then worded made it unlawful for any person on board any vessel within the customs waters of the United States to knowingly ... possess with intent to ... distribute[ ] a controlled substance. A foreign vessel is constructively within the “customs waters” of the United States if there is some type of arrangement between the United States and the foreign government permitting authorities from our nation to board such a vessel upon the high seas. 19 U.S.C. § 1401(j); United States v. Molinares Charris, 822 F.2d 1213, 1216-17 (1st Cir.1987). The “arrangement” can be ad hoc permission from the foreign sovereign. United States v. Robinson, 843 F.2d 1, 2 (1st Cir.1988); United States v. Bent-Santana, 774 F.2d 1545, 1549-50 (11th Cir.1985); see also United States v. Green, 671 F.2d 46, 51-52 (1st Cir.) (interpreting “special arrangement” for boarding of vessels by United States officials as expressed in 19 U.S.C. § 1581(h), cert. denied, 457 U.S. 1135, 102 S.Ct. 2962, 73 L.Ed.2d 1352 (1982). But see United States v. Santa Lara, 783 F.2d 989 (11th Cir.1986) (Hatchett, J., concurring, questioning the holding of Bent-Santana ). To convict the defendants, therefore, the government had to show beyond a reasonable doubt not only that the defendants possessed the marijuana with intent to distribute, but also that the Honduran government approved of the boarding of the vessel by the Coast Guard. It is this “jurisdictional” element of the crime which appellants claim was not properly proven beyond a reasonable doubt at trial. The government used primarily three pieces of evidence to show that it had received proper authorization for the boarding." }, { "docid": "12350460", "title": "", "text": "with over 26,000 pounds of marijuana. Coast Guard personnel could smell the marijuana as soon as they boarded the vessel. The vessel’s captain gave inconsistent answers regarding the vessel’s country of registration, destination, number and nationality of crew members and last port. Additionally, the captain stated there was no cargo. “It is well established that where crewmen are found aboard a vessel upon which the presence of contraband is obvious, their conspiracy is inferable.” United States v. Julio-Diaz, 678 F.2d 1031 (11th Cir.1982). Further, a jury could reasonably conclude that the crewmen constructively possessed the marijuana because more than mere presence has been established. United States v. Biker, 670 F.2d 987 (11th Cir.1982). Thus we find that a reasonable jury could have concluded that the thirteen appellants were guilty of conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana and decline to overturn Appellants’ convictions. RICAR-SANCHEZ’S CAUTIONARY INSTRUCTION Appellant Ricar-Sanchez contends that the district court committed error requiring reversal of his conviction by denying his requested cautionary instruction concerning jury consideration of a prior conviction for conspiracy to import marijuana. The evidence of the prior conviction was properly admitted, over objection, in accordance with United States v. Beechum, 582 F.2d 898 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), because intent was a seriously contested issue during the trial. Appellant Ricar-Sanchez then requested a cautionary instruction “to the effect that the conviction can only be considered as against Mr. Ricar insofar as it may reflect on the knowledge and intent issue and cannot be used to infer guilt of this charge.” Tr. at 771. The trial judge responded, “I am not going to get into commenting on the evidence. I am simply going to say the government is offering it against Ausberto Ricar-Sanchez and it may only be considered by the jury in their consideration of the verdicts involving his case.” Tr. at 771. After the evidence concerning the prior conviction of Ricar-Sanchez, the trial judge instructed the jury: Ladies and gentlemen, just very briefly, the testimony of" }, { "docid": "7583318", "title": "", "text": "presence of attorneys who at best would be hostile witnesses. Appellant was unable to supply addresses of three persons who had allegedly coerced him to take the last voyage. Enough time had gone by, enough attorneys had been provided and had withdrawn, enough continuances granted, enough documents made available, and enough admonition given to satisfy Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Hafen, 726 F.2d 21 (1st Cir.1984); and Maynard v. Meachum, 545 F.2d 273 (1st Cir.1976). The other errors complained of deserve little comment. The prosecutor’s criticized comments fell far short of any errors that, not having been objected to, could be said to be “plain”. The supposed errors of the court were of little moment. The instructions as a whole made quite clear the proper standard of reasonable doubt. Affirmed. . On April 6, 1983, the court had denied a motion to dismiss Count Two of the indictment on double jeopardy grounds, in a three-page order relying on the separate requirements of § 955a(a), proof of vessel registration, and § 955a(b), proof of defendant's citizenship. . These sections read as follows: \"(a) It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. \"(b) It is unlawful for a citizen of the United States on board any vessel to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. \"(c) It is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. \"(d) It is unlawful for any person to possess, manufacture, or distribute a controlled substance— “(1) intending that it be unlawfully imported into the United States; or \"(2) knowing that it will be unlawfully imported" }, { "docid": "23238345", "title": "", "text": "JOHNSON, Circuit Judge: We are faced today with an issue of first impression. We must determine whether 21 U.S.C.A. § 955a extends the criminal jurisdiction of the United States to all stateless vessels on the high seas engaged in the distribution of controlled substances. We conclude that it does. I. Two cases have been consolidated for the purposes of this appeal; the facts in each are substantially identical. In United States v. Marino-Garcia, No. 81-5551, the Coast Guard cutter DEPENDABLE approached the vessel FOUR ROSES on the high seas 65 miles off the west coast of Cuba and 300 miles from Florida. Coast Guard officials boarded the vessel and discovered approximately 57,000 pounds of marijuana. No evidence reflected that the contraband was intended for the United States. Moreover, the FOUR ROSES was not an American ship but was instead a vessel without nationality. Finally, the nine crewmen were all foreign nationals. Coast Guard officials seized the vessel and arrested the crewmen. The crewmen were indicted for conspiracy to possess and possession of marijuana with an intent to distribute in violation of 21 U.S.C.A. § 955a. Defendants sought dismissal of the indictment. They argued that the court had no subject matter jurisdiction over stateless vessels absent proof of a nexus between the vessel and the United States. They further contended that the Government failed to allege sufficient facts necessary to establish the requisite nexus. The district court denied the motion. After a jury trial, defendants were convicted on both counts and sentenced to varying terms of incarceration. Defendants appeal. In the companion case, United States v. Cassalins-Guzman, No. 82-5284, the Coast Guard cutter LIPAN encountered the vessel LADY MARK on the high seas in the vicinity of Cuba. The LIPAN forced the vessel to heave to and attempted to ascertain the LADY MARK’S nationality. Crewmen on board informed personnel on the LIPAN that the vessel was registered in Colombia and that the next port of call was El Salvador. Coast Guard officials nonetheless boarded the LADY MARK to verify the nationality. The boarding party discovered approximately 20,000 pounds of marijuana on" }, { "docid": "17299621", "title": "", "text": "reason for vessel’s journey, lack of evidence of close captain/crew relationship, lack of prior involvement of defendants with drug smuggling but for reversible error in trial; case remanded); United States v. Bland, 653 F.2d 989 (5th Cir. Unit A) (evidence insufficient to convict crew members of tugboat towing barge in which marijuana hidden and crew member aboard ship meeting tugboat, where no circumstances that linked crew to marijuana or indicated illegitimacy of voyage to crew), cert. denied, 454 U.S. 1055, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981); United States v. Willis, 639 F.2d 1335 (5th Cir. Unit A 1979) (similar lack of circumstances from which knowledge of crew could be inferred); United States v. Mehtala, 578 F.2d 6 (1st Cir.1978) (50 pounds of marijuana found in wake of ship with legitimate purpose for voyage, defendant was marine biology student sharing cabin with captain); United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977) (same ship, defendants not professional crew members but “young men, short of funds, seeking travel for educational experience and adventure”). For these reasons, the judgement of the district court is Affirmed. APPENDIX § 955a. Manufacture, distribution, or possession with intent to manufacture or distribute controlled substances on board vessels Vessels within customs waters of United States (c) It is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. § 1401. Miscellaneous When used in this subtitle or in Part I of Subtitle II of this chapter— Customs waters (j) The term “customs waters” means, in the case of a foreign vessel subject to a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search, seize, or otherwise to enforce upon such vessel upon the high seas the laws of the United States, the waters within such distance of the coast of the United States as the said authorities are or may be so enabled or permitted" }, { "docid": "7583319", "title": "", "text": "proof of vessel registration, and § 955a(b), proof of defendant's citizenship. . These sections read as follows: \"(a) It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. \"(b) It is unlawful for a citizen of the United States on board any vessel to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. \"(c) It is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. \"(d) It is unlawful for any person to possess, manufacture, or distribute a controlled substance— “(1) intending that it be unlawfully imported into the United States; or \"(2) knowing that it will be unlawfully imported into the United States.” . This seems very similar to our holding in United States v. Tashjian, 660 F.2d 829, 844 (1st Cir.1981), that two statutes supporting a count charging mail fraud and a count charging the use of a fictitious name in furthering a mail fraud described separate offenses. We have no difficulty in distinguishing United States v. Montilla Ambrosiani, 610 F.2d 65 (1st Cir.1979) in which we chided the government for trying to convict a defendant, on the same set of facts, for (a) concealing and (b) failing to disclose. . No question survived on appeal in Luis-Gonzalez as to the propriety of consecutive sentencing, since the trial court imposed concurrent sentences. Id. at 1546 n. 5. . We must conclude that our holding in United States v. Honneus, 508 F.2d 566, 569-70 (1st Cir.1974), that, where an agreement embraced three separate objects — -importation, distribution, and smuggling — the conspiracy was but a single crime, is no longer good» law. . The Marrale court, after applying its three-step test (discrete statutory sections," }, { "docid": "21612162", "title": "", "text": "98,325 pounds of marihuana, with intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 955a(a) & 955a(f). Section 955a(a), since superseded, provided that: It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, a controlled substance. (Emphasis added.) Prior to November 20, 1986, the date of these offenses, however, section 955a(a) had been amended and recodified at 46 U.S.C.App. § 1903(a), which provides in relevant part that: It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States ... to knowingly or intentionally manufacture or distribute, a controlled substance. (Emphasis added.) Although both section 1903(a) and superseded section 955a contain the same term— “subject to the jurisdiction of the United States,” section 1903 defines the term more broadly than did section 955a(a), as includ ing, inter alia, “a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States,” 46 U.S.C.App. § 1903(c)(1)(C). See United States v. Doe, 878 F.2d 1546, 1549 (1st Cir.1989). Petitioner challenges the district court ruling that petitioner, though indicted under superseded section 955a(a), was nevertheless lawfully convicted under successor section 1903(a) as he was aboard a vessel “subject to the jurisdiction of the United States” since Honduras consented to SEE WONDERER’s boarding. Petitioner invites particular attention to the very similar- circumstances presented in United States v. Doe, 878 F.2d 1546, and United States v. Potes, 880 F.2d 1475 (1st Cir.1989), where the defendants, like petitioner, were charged under superseded section 955a(a) rather than successor section 1903(a). Doe and Potes rejected contentions that flag nation consent was sufficient to sustain convictions under indictments alleging violations of superseded section 955a(a). As we said in Doe, 878 F.2d at 1549-1550: One reading it would simply think that the indictment charged the crime of possessing" }, { "docid": "23060530", "title": "", "text": "OPINIONS EN BANC SELYA, Circuit Judge. Juan Pimienta-Redondo and Alfredo Pupo, defendants-appellants, were resen-tenced by the district court after we reversed their convictions for possession of marijuana with intent to distribute on one of two counts, affirmed on the second count, and remanded. United States v. Molinares Charris, 822 F.2d 1213 (1st Cir.1987). They argue that the revised sentences violated their due process rights and placed them in double jeopardy. We believe that the sentences were lawfully imposed and reject the appeals. I. BACKGROUND Pimienta-Redondo and Pupo, along with six codefendants, were charged with two counts of possessing controlled substances with intent to distribute pursuant to 21 U.S.C. § 955a(a) (Count I) and § 955a(c) (Count II). At trial, the government presented evidence that defendants were transporting marijuana in a Honduran-registered vessel and that, with permission from the Honduran government, the Coast Guard boarded the vessel for the purpose of enforcing United States law. Molinares Charris, 822 F.2d at 1215. The district court instructed the jury that for the purposes of Count I, a vessel of a foreign nation could be “ ‘subject to the jurisdiction of the United States on the high seas,’ ” see 21 U.S.C. § 955a, if the foreign nation “ ‘consents that the United States enforce its laws upon said vessel.’ ” Id. at 1216 (quoting jury instructions). The court charged the jury that for purposes of Count II, the vessel, when boarded by the Coast Guard, was within “ ‘the customs waters of the United States,”’ see 21 U.S.C. § 955a(c), if the jury found beyond a reasonable doubt “ ‘that there was an arrangement between the government of Honduras and the United States, allowing the United States to board and enforce its laws upon the vessel.’ ” Id. at 1216 (quoting jury instructions). The jury found defendants guilty on both counts. The district court thereafter sentenced all defendants. Pimienta-Redondo received five years imprisonment on each count, and Pupo received six years on each, with all sentences running consecutively. Concurrent 5-year special parole terms and $50 special assessments were also imposed. The record reflects" }, { "docid": "23060547", "title": "", "text": "issue by direct appeal and has not completed serving a valid sentence.” United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir.1987) (footnote omitted). Accord Colunga, 812 F.2d at 198; United States v. Crawford, 769 F.2d 253, 257 (5th Cir.1985), cert. denied, 474 U.S. 1103, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986). The shoe fits comfortably here. Defendants, not having served the duration of the sentences previously imposed, attacked the bases on which those sentences rested by filing their original appeal. Their challenge necessitated review and redetermination of the full sentencing packages. We find ourselves in general agreement with the proposition that: Where the defendant challenges one of several interdependent sentences (or underlying convictions) he has, in effect, challenged the entire sentencing plan.... Consequently, he can have no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal. Shue, 825 F.2d at 1115 (citations omitted). Accord Bentley, 850 F.2d at 329; Cataldo, 832 F.2d at 875; Hagler, 709 F.2d at 579; McClain v. United States, 676 F.2d 915, 918 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982). So here: the double jeopardy clause did not foreclose resentencing on the affirmed count, within applicable statutory limits, to effectuate the trial court’s original sentencing intentions. IV. CONCLUSION We need go no further. We believe that the district court resentenced appellants in accordance with law and without infringing upon their constitutional rights. Retrofitting defendants’ sentences in the wake of their partially successful appeal to comport with the court’s original sentencing plan was permissible. The judgments appealed from are, therefore, Affirmed. . 21 U.S.C. § 955a provides, in pertinent part, as follows: (a) Vessels of United States or vessels subject to jurisdiction of United States on high seas It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. (b) Citizens of" }, { "docid": "15886988", "title": "", "text": "United States Code, Section 955a(a) and 955a(f). Since 18 U.S.C. § 2 (1982) simply makes those who help commit a crime (e.g., those who aid or abet) guilty as principals, and 21 U.S.C. § 955a(f) (1982) says only that a person violating § 955a “shall be tried in the United States district court at the point of entry,” Count I, insofar as it charges a crime, charges a violation of 21 U.S.C. § 955a(a) (1982). The relevant statute, 21 U.S.C. § 955a(a), reads as follows: It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or do- tribute, or to possess with intent to manufacture or distribute, a controlled substance. This statute makes it a crime knowingly to possess drugs with intent to distribute them on board (a) “a vessel of the United States,” or (b) “a vessel subject to the jurisdiction of the United States.” The Government concedes that the Cirrus was not “a vessel of the United States.” Neither is it “a vessel subject to the jurisdiction of the United States,” for that phrase, as specifically defined in 21 U.S.C. § 955b(d) (1982), refers only to stateless vessels and the equivalent. Since the record contains no evidence that the Cirrus falls within the statutory language setting forth the elements of the crime that the indictment charges, the district court should have granted the appellants’ motion for a directed verdict of acquittal. United States v. Miller, 471 U.S. 130, 138, 105 S.Ct. 1811, 1816, 85 L.Ed.2d 99 (1985) (defendant cannot be convicted of an offense not contained in the indictment); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Young, 730 F.2d 221, 224 (5th Cir.1984) (“if a federal offense may be predicated upon alternative bases of jurisdiction, a defendant’s conviction cannot rest upon a basis of jurisdiction different from that charged in the indictment”). United States v. Molinares-Charris, 822 F.2d 1213, 1216 (1st Cir.1987)" }, { "docid": "12350463", "title": "", "text": "evidence to support the verdict without the evidence of the prior conviction of Appellant Ricar-Sanchez. The evidence against all thirteen Appellants was virtually identical. The extrinsic offense evidence against Ricar-Sanchez could not have had a substantial influence on the jury’s verdict where other Appellants, against whom evidence of prior convictions was not admitted, were also convicted. Further, during the final jury charge, the district court instructed the jury that “the defendant is not on trial for any act or conduct or offense not alleged in the indictment.” We therefore conclude that on the specific facts of this case, the failure to give the proper cautionary instruction is harmless error. TRIAL JUDGE’S IMPARTIALITY Appellants argue that the district judge was not impartial. After a review of the transcript, we find no evidence that the trial judge failed to maintain an aura of impartiality. The trial lasted over a week, involved thirteen defendants and was complicated by language barriers requiring interpreters. Under such circumstances, it is not surprising that everything done or said by the trial judge did not please the numerous counsel involved. It appears to us that the trial court was even-handed with all concerned. We therefore find Appellants’ contention to be meritless. CONCLUSION Having considered all the issues raised by Appellants and finding that none require reversal, the convictions of all thirteen Appellants are AFFIRMED. . We compliment appellants’ attorneys for their cooperation and efficiency in organizing the issues on appeal. The appellants’ attorneys have accomplished the rare feat of being thorough while avoiding repetition. . 21 U.S.C. Section 955a(a) provides: It is unlawful for any person on board ... a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. 21 U.S.C. Section 955b(d) defines a “vessel subject to the jurisdiction of the United States” as including a vessel without nationality or a vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the Convention on the High Seas, 1958." }, { "docid": "15396258", "title": "", "text": "Guard has happened upon a marijuana-laden vessel on the high seas, there may be an issue about whether the cargo is bound for the United States, and thus whether this country has jurisdiction to prosecute the foreign crewmembers. See, e.g., United States v. Freeman, 660 F.2d 1030, 1034-35 (5th Cir.1981), cert. denied, - U.S.-, 103 S.Ct. 54, 74 L.Ed.2d 59 (1982) (holding that evidence of United States destination was sufficient to give court jurisdiction where defendants were found on board American vessel off coast of Mexico); United States v. Jonas, 639 F.2d 200, 205 (5th Cir.1981) (holding that United States had jurisdiction to prosecute defendants for conspiracy to possess with intent to distribute where defendants were found on board American vessel laden with marijuana sixty to eighty miles from the Florida Keys); United States v. Ricardo, 619 F.2d 1124, 1128-29 (5th Cir.), cert. denied, 446 U.S. 1063, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980) (United States had jurisdiction to prosecute Colombian and American seamen for conspiracy to import and to possess marijuana with intent to distribute where defendants were found on board American vessel 125-150 miles from the Texas coast and cargo was destined for United States); United States v. Baker, 609 F.2d 134 (5th Cir.1980) (possession of large quantity of marijuana on an American vessel outside United States territorial waters but within “customs waters” is crime under 21 U.S.C. § 841(a)(1) where it was clear intended distribution would occur in United States); see also United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 748, 74 S.Ct. 967 (1983) (United States has jurisdiction to prosecute persons found on board stateless vessel on the high seas for possession of marijuana with intent to distribute it in violation of 21 U.S.C. § 955a). These cases hold that the government need not prove any overt act within the United States in order to convict a defendant of conspiracy to possess marijuana with intent to distribute it as long as there is sufficient evidence that the conspiracy was to be consummated within United States territory. See, e.g.," }, { "docid": "18174014", "title": "", "text": "what appeared to him as bales of marijuana on the ship’s stern. After the vessel stopped pursuant to the officer’s request, the members of the Coast Guard party boarded the BRANDY. They found the bales, containing what seemed to be a controlled substance, on the BRANDY’S fantail. A subsequently conducted field test revealed that the seized contraband constituted THC, the active ingredient in marijuana. The nine men found aboard the BRANDY, all of whom are Colombian nationals, were immediately arrested and brought back to Miami. They were indicted for conspiracy with intent to distribute and with possession with intent to distribute 6,000 pounds of marijuana. After a non-jury trial, the appellants were each convicted and sentenced to two years’ imprisonment and a special parole term for possession with intent to distribute. II. THE LEGAL CHALLENGE A. Motion for Judgment of Acquittal Following their adjudication of guilt by the trial judge, the appellants moved for a judgment of acquittal, claiming insufficient evidence to prove that the BRANDY was a vessel of the United States and to sustain their convictions for conspiracy. Section 955a of Title 21 of the United States Code makes it unlawful “for any person on board a vessel of the United States or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally . . . possess with intent to . .. distribute a controlled substance.” Hence, a material ele ment of this provision is that the ship involved be a vessel of the United States. The judge in the case at bar found that the BRANDY was a United States registered vessel. Our reading of the record discloses that ample, indeed overwhelming, evidence exists to support this finding. At trial, the government introduced official documents establishing that the M/V BRANDY was an American registered vessel from Miami, Florida. This certificate of registry contained a description of the BRANDY. A photograph of the BRANDY which was boarded by the Coast Guard was likewise admitted into evidence. Coast Guard Officer Larry Nuccio testified that he identified the BRANDY, from" }, { "docid": "3314961", "title": "", "text": "that he knew it was a “coke” spoon “because I have seen a bunch of them in Playboys and this and that.” On cross-examination, the prosecutor inquired into Alvaredo’s knowledge of cocaine and related paraphernalia, at one point asking whether Alvaredo had discussed with a DEA agent “going to Ft. Stockton to purchase large quantities of cocaine.” Alvar edo denied the discussion, and the court properly overruled the defense’s objection to the inquiry. ^ Contrary to appellant’s assertions, Rule 608 of the Federal Rules of Evidence is not applicable to this situation. This is not a case where specific instances of misconduct, totally unrelated to the witness’ substantive testimony, were used in an attempt to impeach. Alvaredo’s direct testimony revealed the alleged basis for his knowledge that the spoon he observed was a “coke” spoon. The government was entitled to test the credibility and factual foundation of that statement. The trial court has broad discretion concerning the scope of cross-examination. United States v. Zepeda-Santana, 5 Cir., 1978, 569 F.2d 1386, 1389, cert. denied, 437 U.S. 907, 98 S.Ct. 3098, 57 L.Ed.2d 1138; United States v. Onori, 5 Cir., 1976, 535 F.2d 938, 945. Furthermore, the scope of the direct examination may be exceeded on cross-examination in an effort to test the truthfulness of the witness. United States v. Gremillion, 5 Cir., 1972, 464 F.2d 901, 908, cert. denied, 409 U.S. 1085, 93 S.Ct. 683, 34 L.Ed.2d 672; United States v. Dillon, 5 Cir., 1971, 436 F.2d 1093, 1094. The questioning of Alvaredo was properly within the scope of cross-examination and did not constitute reversible error. AFFIRMED. . 21 U.S.C. § 841 provides, in pertinent part: (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . Rule 403, Federal Rules of Evidence, provides that: Although 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 jury, or by considerations of" }, { "docid": "23594139", "title": "", "text": "TORRUELLA, District Judge. On October 31, 1980, while on the high seas approximately one hundred miles off the Massachusetts coast, the United States Coast Guard cutter ALERT intercepted, boarded and seized the JUDITH LEE ROSE, a United States vessel, and the DIANA CECILIA, an unregistered flagless vessel, while persons aboard them were in the process of transferring a cargo of mari huana from the DIANA CECILIA to the JUDITH LEE ROSE. All persons aboard both vessels were arrested, among them Appellant John Smith (Smith), who was found on the DIANA CECILIA together with another United States citizen, Joseph Baxley (Baxley), and ten nationals of the Republic of Colombia. All ten persons arrested aboard the JUDITH LEE ROSE were citizens of the United States. Thereafter, Smith was charged with possession of marihuana with the intent to distribute (21 U.S.C. § 955a and 18 U.S.C. § 2) and conspiracy to do the same (21 U.S.C. §§ 955a and 968), and upon his trial and conviction filed the present appeal. To begin with Smith claims that the charges against him should have been dismissed because Congress in enacting 21 U.S.C. § 955a, lacked the power to extend its criminal jurisdiction to acts committed outside the territorial waters of the United States, on non-United States vessels. In its pertinent parts, 21 U.S.C. § 955a, reads as follows: “(a) It is unlawful for any person .. . on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally ... possess with intent to .. . distribute a controlled substance.” Although courts have been reluctant to give extraterritorial effect to penal statutes, United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922), the statute presently in question clearly demonstrates that such application was intended by Congress. Not only does Subsection (a) define the offense in terms of “the high seas”, but section 955a(h) provides that said statute “is intended to reach acts of possession, manufacture or distribution committed outside the territorial jurisdiction of the United States’’ (emphasis supplied). See also S.Rep.No." }, { "docid": "15886987", "title": "", "text": "its indictment — American citizenship — with legally competent evidence (the only evidence presented being statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). And, the Government similarly failed to present sufficient evidence in respect to essential elements of the specific crime it charged in Count III. I. Count I Count I of the indictment reads as follows: On or about November 14, 1986, on board a vessel subject to the jurisdiction of the United States on the high seas, the S/V Cirrus, and within the jurisdiction of this court, ... Dominic Santini, ... Randy Parmeter, ... Ralph Rios, ... and Lynn O’Brien, the defendants herein, aiding and abetting each other did knowingly, willfully, intentionally and unlawfully possess with intent to distribute approximately 8,000 pounds of marihuana ... The district of Puerto Rico was the point of entry where said defendants entered the United States following the commission of the aforesaid offense, all in violation of Title 18 United States Code, Section 2 and Title 21 United States Code, Section 955a(a) and 955a(f). Since 18 U.S.C. § 2 (1982) simply makes those who help commit a crime (e.g., those who aid or abet) guilty as principals, and 21 U.S.C. § 955a(f) (1982) says only that a person violating § 955a “shall be tried in the United States district court at the point of entry,” Count I, insofar as it charges a crime, charges a violation of 21 U.S.C. § 955a(a) (1982). The relevant statute, 21 U.S.C. § 955a(a), reads as follows: It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or do- tribute, or to possess with intent to manufacture or distribute, a controlled substance. This statute makes it a crime knowingly to possess drugs with intent to distribute them on board (a) “a vessel of the United States,” or (b) “a vessel subject to the jurisdiction of the United States.” The Government concedes" }, { "docid": "23238346", "title": "", "text": "intent to distribute in violation of 21 U.S.C.A. § 955a. Defendants sought dismissal of the indictment. They argued that the court had no subject matter jurisdiction over stateless vessels absent proof of a nexus between the vessel and the United States. They further contended that the Government failed to allege sufficient facts necessary to establish the requisite nexus. The district court denied the motion. After a jury trial, defendants were convicted on both counts and sentenced to varying terms of incarceration. Defendants appeal. In the companion case, United States v. Cassalins-Guzman, No. 82-5284, the Coast Guard cutter LIPAN encountered the vessel LADY MARK on the high seas in the vicinity of Cuba. The LIPAN forced the vessel to heave to and attempted to ascertain the LADY MARK’S nationality. Crewmen on board informed personnel on the LIPAN that the vessel was registered in Colombia and that the next port of call was El Salvador. Coast Guard officials nonetheless boarded the LADY MARK to verify the nationality. The boarding party discovered approximately 20,000 pounds of marijuana on the vessel. The party also located four different national flags and $1,000 in United States currency. The boarding party did not, however, discover any evidence estab lishing that the crewmen of the LADY MARK intended to bring the illicit substance into the United States. The LADY MARK defendants were all charged with conspiring to violate and violation of Section 955a. Defendants successfully moved to have the indictment dismissed. The district court assumed for purposes of the motion that the LADY MARK was a stateless vessel. The district court concluded that the Government’s failure to establish a nexus between the United States and the stateless vessel deprived the court of jurisdiction. The Government appeals the dismissal. II. (a) We consider first defendants’ contention that the United States may not assert jurisdiction over stateless vessels on the high seas under Section 955a absent proof of a nexus between this country and the vessel. Section 955a prohibits any person on board a “vessel subject to the jurisdiction of the United States” from possessing a controlled substance with the" }, { "docid": "18174015", "title": "", "text": "sustain their convictions for conspiracy. Section 955a of Title 21 of the United States Code makes it unlawful “for any person on board a vessel of the United States or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally . . . possess with intent to . .. distribute a controlled substance.” Hence, a material ele ment of this provision is that the ship involved be a vessel of the United States. The judge in the case at bar found that the BRANDY was a United States registered vessel. Our reading of the record discloses that ample, indeed overwhelming, evidence exists to support this finding. At trial, the government introduced official documents establishing that the M/V BRANDY was an American registered vessel from Miami, Florida. This certificate of registry contained a description of the BRANDY. A photograph of the BRANDY which was boarded by the Coast Guard was likewise admitted into evidence. Coast Guard Officer Larry Nuccio testified that he identified the BRANDY, from its picture, as being the same vessel as that which was in U.S. custody and which was described in the certificate of registry as an American flag vessel. As the trial court stated in ruling that the evidence was sufficient as to its being an American vessel, . . . [TJhere is just no question at all that all of the essential elements have been established including the fact that it was a vessel of the United States. You not only have the documentation you have the appearance of the vessel itself, the testimony as to its name and home port, et cetera, but the document itself with the supporting evidence presented through the witness clearly establishes that. R. Vol. II at 79. Based on the foregoing, we conclude that the evidence sufficed to establish that the ship in question, the BRANDY, was an American flag vessel. The appellants additionally attack as insufficient the evidence of their conspiracy to possess marijuana with intent to distribute it. It is well established that where crewmen are found" }, { "docid": "22439506", "title": "", "text": "States v. Peel, 837 F.2d 975 (11th Cir.1988), this court held that the trial court’s jury instructions constructively amended the indictment. Id. at 980. In Peel, the indictment charged the defendant with conspiracy to violate 21 U.S.C. § 955a(a). Id. at 976. 21 U.S.C. § 955a(a) requires the government to prove that the defendant was “on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas” and “knowingly or intentionally manufactured or distributed, or possessed with intent to manufacture or distribute a controlled substance.” The trial court in Peel had instructed the jury that in order to convict the defendant they must first find “the defendant was onboard (sic) a vessel of the United States or that the defendant was a citizen of the United States onboard (sic) any vessel.” Id. at 976-77. Because the indictment only alleged he was “on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States,” and not that he was a United States citizen on board any vessel, the court held the jury instructions expanded the possible bases on which to convict the defendant and thus constituted an amendment to the indictment. Id. In a case similar to this one, this court in United States v. Andrews, 850 F.2d 1557 (11th Cir.1988) (en banc), cert. denied, 488 U.S. 1032, 109 S.Ct. 842, 102 L.Ed.2d 974 (1989), rejected a claim that the trial court had amended the indictment on a conspiracy charge. Id. at 1560. The court noted that in determining if an amendment occurred, jury instructions must be examined in light of the whole trial. Id. at 1559. The court decided that while the instructions were ambiguous, they did not effectively amend the indictment. The government did not contend at trial that anyone else was involved in the conspiracy, and the trial court in its instructions repeatedly stated “as charged in the indictment.” Id. at 1559-60. The instructions therefore failed to give the jury the impression that they could convict" }, { "docid": "23060548", "title": "", "text": "918 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982). So here: the double jeopardy clause did not foreclose resentencing on the affirmed count, within applicable statutory limits, to effectuate the trial court’s original sentencing intentions. IV. CONCLUSION We need go no further. We believe that the district court resentenced appellants in accordance with law and without infringing upon their constitutional rights. Retrofitting defendants’ sentences in the wake of their partially successful appeal to comport with the court’s original sentencing plan was permissible. The judgments appealed from are, therefore, Affirmed. . 21 U.S.C. § 955a provides, in pertinent part, as follows: (a) Vessels of United States or vessels subject to jurisdiction of United States on high seas It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. (b) Citizens of United States It is unlawful for a citizen of the United States on board any vessel to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. (c) Vessels within customs waters of United States It is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. (d)Intent or knowledge of unlawful importation into United States It is unlawful for any person to possess, manufacture, or distribute a controlled substance— (1) intending that it be unlawfully imported into the United States; or (2) knowing that it will be unlawfully imported into the United States. . In Christensen, the defendant, a United States citizen, was aboard a vessel registered in the United States when the Coast Guard, finding over 50,000 tons of marijuana on board, seized the vessel in the vicinity of the Virgin Islands. 732 F.2d at 21. He challenged, on double" } ]

[ { "docid": "1514874", "title": "", "text": "on the merits. We have already reviewed the merits, and we dismiss the appeal of the denial of the new trial motion. A motion to alter or amend judgment pursuant to Rule 59(e), however, is appealable. E.g., Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 811 (9th Cir.1981); Weems v. McCloud, 619 F.2d 1081, 1098 (5th Cir.1980). A district court’s decision not to amend or alter judgment may be overturned only for an abuse of discretion. Weems, 619 F.2d at 1098. Because appellants’ motion for amendment or alteration of judgment merely restated the arguments raised in their motion for a new trial, however, we need not review it as we have already decided the underlying merits of the case. See Blair v. Delta Air Lines, Inc., 344 F.Supp. 367, 368 (S.D.Fla.1972), aff'd, 477 F.2d 564 (5th Cir.1973). VI. CONCLUSION With the exception of the Bidco-Tomball project, we affirm the district court’s summary judgment holding that the transactions between the appellants and appellees were not securities within the meaning of the federal securities laws. With regard to the Bidco-Tomball project, we reverse the district court’s summary judgment and remand for trial because fact issues as to security status remain. The intervening Supreme Court decision in Sedima causes us to reverse the district court’s summary judgment dismissing appellants’ civil RICO claims. These claims are remanded to the district court for trial. We also hold that the district court did not abuse its discretion in denying appellants’ motion to amend their original complaint. Finally, we hold that the district court’s denial of appellants’ motion for a new trial is not appeal-able. Cast in the alternative as a motion to amend and alter judgment, appellants’ motion, though appealable, merely restates the same attack on the merits. We, therefore, dismiss the appeal on this issue as well. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. . We are puzzled at appellants’ insistence, both in their briefs and at oral argument, that we apply the standard of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), to decide this issue. Under" } ]

[ { "docid": "20711854", "title": "", "text": "motions Scrushy filed on June 26, 2009, a motion to recuse Judge Fuller and a motion for a new trial. We review for abuse of discretion a district court’s denial of a motion to recuse, In re Walker, 532 F.3d 1304, 1308 (11th Cir.2008) (citing Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir.2000)), and a motion for a new trial, United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir.2005) (citing Butcher v. United States, 368 F.3d 1290, 1297 (11th Cir.2004)). “A district court abuses its discretion when it misapplies the law in reaching its decision or bases its decision on findings of fact that are clearly erroneous.” Goodman-Gable-Gould Co. v. Tiara Condominium Ass’n, Inc., 595 F.3d 1203, 1210 (11th Cir.2010) (quoting Arce v. Garcia, 434 F.3d 1254, 1260 (11th Cir.2006)). We find no abuse of discretion in Judge Hinkle’s handling of the motion to recuse or in Judge Fuller’s handling of the motion for new trial. We consider in sequence the denial of the two motions. A. A party may move for the recusal of a judge under 28 U.S.C. § 455. The statute sets out two situations in which recusal is required. Section (a) provides that recusal is necessary where a judge’s impartiality may reasonably be questioned. 28 U.S.C. § 455(a) (2006) (“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”). The standard of review is “whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.” United States v. Patty 337 F.3d 1317, 1321 (11th Cir.2003) (quoting Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988)). The standard is thus an objective one, “designed to promote the public’s confidence in the impartiality and integrity of the judicial process.” In re Evergreen Sec., Ltd., 570 F.3d 1257, 1263 (11th Cir.2009) (quoting Davis v. Jones, 506 F.3d 1325, 1332 n. 12 (11th Cir.2007)). Section (b) lists several circumstances requiring recusal, including “[wjhere [the judge]" }, { "docid": "22877476", "title": "", "text": "is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fbd.R.CivP. 56(e). III. DISCUSSION A. Motion to Amend Complaint . The owners first contend that the district court erred in not addressing their motions for reconsideration and for leave to amend their complaint, which had been simultaneously filed after the magistrate had stricken their amended complaint on grounds that it had not been timely filed. They argue that although the decision to grant leave to amend is normally left to the sound discretion of the trial court, in this case the district court did not even attempt to exercise its discretion but instead simply declined to act on their motion. They also suggest that if the district court did implicitly deny their motion to amend, the court abused its discretion because it did not identify the reasons for its decision. Nonetheless, we find the owners’ arguments to be without merit. The denial of a motion by the district court, although not formally expressed, may be implied by the entry of a final judgment or of an order inconsistent with the granting of the relief sought by the motion. Addington v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 672, 70 L.Ed.2d 640 (1981). In its order of dismissal in which it granted Apache’s motion for summary judgment, the district court implicitly denied the owners’ motion for leave to amend in the instant case. Specifically, the district court stated: The Plaintiffs filed with this Court a motion to reconsider the Magistrate-Judge’s Order, upon which the Court took no action. Nevertheless, in light of the Court’s decision today, the court now sees fit to specifically 'affirm the Magistrate-Judge’s Order in all respects. Furthermore, the parties should not infer that the Court in any way ratified the Plaintiffs’ Amended Complaint or overruled the Magistrate-Judge’s Order through the Court’s inadvertent reference to the causes of action set out in the Amended Complaint in this Court’s first Order concerning the Defendant’s Motion" }, { "docid": "23242956", "title": "", "text": "moved for the magistrate judge’s recusal for the first time. The magistrate judge vacated the February 9 trial date and established a briefing schedule to consider the recusal motion. On March 13, 2009, the magistrate judge held a hearing both on VCV’s motion for recusal and its motion for leave to file a counterclaim; he denied both. On June 6, 2009, VCV sought reconsideration of its recusal motion, which the magistrate judge denied on July 23. The following day, the court issued a Final Order awarding VCV costs on NNHC’s abandoned copyright infringement claim but denying its motion for attorney’s fees on that claim. The Final Order also awarded NNHC statutory damages and attorney’s fees on its ACPA claim and imposed sanctions on VCV’s counsel. VCV timely appealed. II. VCV asserts numerous issues on appeal: the magistrate judge’s failure to recuse; the court’s assertion of personal jurisdiction over Tran; its grant of summary judgment to NNHC on the ACPA claim; its denial of VCV’s request to file a counterclaim; its award of statutory damages and attorney’s fees to NNHC and sanctions against VCV’s counsel; and its finding that VCV was not the prevailing party for purposes of an award of attorney’s fees on NNHC’s abandoned copyright infringement claim. We address each argument in turn. A. VCV challenges the denial of its motion for recusal under 28 U.S.C. § 455 and the denial of its motion for reconsideration seeking recusal. We review for abuse of discretion. United States v. Mitchell, 886 F.2d 667, 671 (4th Cir.1989). Section 455(a) states: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As we have noted, “[tjimeliness is an essential element of a recusal motion.... To prevent inefficiency and delay, motions to recuse must be filed at the first opportunity after discovery of the facts tending to prove disqualification.” United States v. Whorley, 550 F.3d 326, 339 (4th Cir.2008) (first alteration in original) (internal quotations omitted); see also United States v. Owens, 902 F.2d 1154, 1155 (4th Cir.1990) (noting that" }, { "docid": "21858458", "title": "", "text": "the jury, an additional finding that Blatter acted “oppressively.” J.A. at 102-03 (Order Granting New Trial) (quoting jury instructions). The uncontradicted and undisputed evidence indicates that Blatter acted oppressively in retaliating against Bell’s exercise of his First Amendment rights. We must uphold the district court’s decision unless we have “a definite and firm conviction” that the district court “committed a clear error of judgment in the conclusion it reached.” Holmes, 78 F.3d at 1045 (internal quotations omitted). As the facts of this case do not justify such a firm conviction, we must affirm the district judge’s decision to order a new trial on damages. C. Motion for Recusal We review a lower court’s denial of a recusal motion for abuse of discretion. Youn v. Track, Inc., 324 F.3d 409, 422 (6th Cir.2003). The main federal recusal statute provides in relevant part: (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evi-dentiary facts concerning the proceeding .... 28 U.S.C. § 455(a)-(b) (emphases added). In Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), the Supreme Court explained that consideration of the “extrajudicial source factor” is necessary when making determinations under both § 455(a) and § 455(b)(1). Contrary to the suggestion of prior caselaw, see, e.g., Wheeler v. Southland Corp., 875 F.2d 1246, 1251 (6th Cir.1989), the Supreme Court clarified that an extrajudicial source for a judge’s opinion about a case or a party is neither necessary nor sufficient to require recusal. Liteky, 510 U.S. at 554-56, 114 S.Ct. 1147. Instead, the presence of an extrajudicial source is merely a thumb on the scale in favor of finding either an appearance of partiality under § 455(a) or bias or prejudice under § 455(b)(1). See Liteky, 510 U.S. at 554-56, 114 S.Ct. 1147. Even accepting Blatter’s account of the off-the-record status conference, it is apparent" }, { "docid": "23701169", "title": "", "text": "testimony during his Rule 11 questioning to the effect that he was satisfied with Porrata’s representation, leaves no conclusion but that Porrata’s representation meets constitutional muster. There is therefore no valid reason presented for reversing the district court’s findings and conclusions. IV. The Recusal Motion Title 28, United States Code Section 455(a) states “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The well-established test in this circuit is an objective one: whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28 U.S.C. § 455, but rather in the mind of the reasonable man. United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977). Under this section, judicially acquired information can form the basis of a judge’s disqualification as long as it meets the standard established in Cowden. United States v. Cepeda Penes, 577 F.2d 754 (1st Cir.1978). Prior adverse rulings alone cannot, of course, be the basis for a motion to recuse. Cowden, 545 F.2d at 265. Similarly, it is not enough to argue that the judge is partial because he or she had been involved in other stages of the case. “Participation in prior proceedings involving the same ... parties does not in itself constitute grounds for disqualification.” United Union of Roofers, etc., Union No. 33 v. Meese, 823 F.2d 652, 659 (1st Cir.1987). We will review a judge’s decision against recusal only to see if the judge’s determination amounted to an abuse of discretion. United States v. Parrilla Bonilla, 626 F.2d 177, 179 (1st Cir.1980). Panzardi’s claim of bias focuses primarily on alleged hostilities between the judge below and White. In fact, Panzardi’s only indication of prejudice against him is the judge’s denial of Panzardi’s motion to reduce his sentence in light of his cooperation with the authorities." }, { "docid": "7725939", "title": "", "text": "of unsuccessful attempts, both in the district court and this Court, to have the trial stayed. On January 18, when the trial began as scheduled, ISC declined to put on any witnesses or otherwise introduce evidence; the district court therefore dismissed the petition to compel arbitration with prejudice, pursuant to Fed.R.Civ.P. 41(b). Following the entry of judgment, ISC timely appealed the dismissal with prejudice; that appeal, consolidated with ISC’s appeal of the vacatur, is before us now. Discussion I. Recusal We begin with Judge Stanton’s denial of ISC’s motion for his recusal, which we review for abuse of discretion. United States v. Carlton, 534 F.3d 97, 100 (2d Cir.2008). Recusal here is governed by 28 U.S.C. § 455(a), which states that “[a]ny ... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This provision is to “be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance.” Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). The question, as we have put it, is whether “an objective, disinterested observer fully informed of the underlying facts, [would] entertain significant doubt that justice would be done absent recusal.” Carlton, 534 F.3d at 100 (alteration in original) (internal quotation omitted). “[I]t is a rare case,” as this Court has said, “when a district judge’s denial of a motion to recuse is disturbed by an appellate court....” In re IBM, 45 F.3d 641, 642 (2d Cir.1995). In applying § 455(a)’s standard, the Supreme Court has noted that “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555, 114 S.Ct. 1147. However, where these opinions are not “properly and necessarily acquired in the course of the proceedings,” id. at 551, 114 S.Ct. 1147," }, { "docid": "2449934", "title": "", "text": "valid. Title 28 U.S.C. § 455(a) provides that a federal judge shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned. A motion for recusal is within the discretion of the district judge and the denial of such a motion will not be reversed on appeal unless the judge has abused his discretion. Garcia v. Woman’s Hosp. of Texas, 143 F.3d 227, 230 (5th Cir.1998). This Circuit has recognized that each section 455(a) case is extremely fact intensive and fact bound, and must be judged on its unique facts and circumstances rather than by comparison to similar situations considered in prior jurisprudence. United States v. Jordan, 49 F.3d 152, 157 (5th Cir.1995). The party seeking recusal must demonstrate that, if a reasonable person knew of all of the circumstances, they would harbor doubts about the judge’s impartiality. Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1408 (5th Cir.1994). Thus, if a judge concludes that his impartiality might be reasonably questioned, then he should find that the statute requires his recusal. In re Faulkner, 856 F.2d 716, 721 (5th Cir.1988) (citing Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). The goal of section 455(a) is to avoid even the appearance of partiality. Liljeberg, 486 U.S. at 860. In light of the specific facts of this case we hold that the Judge McBryde abused his discretion and reversibly erred in failing to recuse himself from Anderson’s case. It is clear that a reasonable person, when appraised of the relevant circumstances that surround this case, would harbor doubts about Judge McBryde’s impartiality. The average person when viewing this specific situation, would question Judge McBryde’s ability to be impartial in a case involving an attorney who has testified adversely against Judge McBryde in a Judicial Council proceeding. As Anderson notes many attorneys are fearful of even filing a complaint against a judge to a circuit judicial council, due to fear of retaliation from that complained-against judge. If there is a fear in merely filing a complaint against a judge," }, { "docid": "23273204", "title": "", "text": "Heritage Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir.1981). C. Post Judgment Motion On June 8, 1987, motions were filed requesting, inter alia, leave to file a late response to TWA’s motion to dismiss. A declaration of counsel accompanied the motion. Judge Conti denied the motion stating that “[a]t this late date, plaintiff cannot seriously contend she lacked an opportunity to respond to defendant’s motion.” ER 149 at 4. We review denials of motions under Fed.R.Civ.P. 60 for abuse of discretion. Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). Appellants’ claim that Judge Conti abused his discretion is without merit. No aspect of appellants’ explanation for their neglect constitutes a valid reason or an adequate showing of excusable neglect for relief under Rule 60(b). Moreover, under Local Rule 220-1, the district court was under no obligation to hold a hearing on the motion. We find no abuse of discretion in the court’s denial of the 60(b) motion. D. Motion to Disqualify In addition to appellants’ motion for relief from judgment and for leave to file a late response, they also moved to disqualify Judge Conti pursuant to 28 U.S.C. §§ 144 and 455(b)(1). In accordance with § 144, an affidavit of prejudice was submitted asserting that Judge Conti had formed a “personal bias or prejudice” against plaintiff. ER 145. Judge Conti denied the motion for disqualification, finding that the motion lacked a legal basis in that the “alleged bias or prejudice did not arise from an extrajudicial source.” ER 149 at 3. Alternatively, the court found that “bias against plaintiff’s counsel may not qualify as prejudice against plaintiff for purposes of disqualification.” Id. Notwithstanding the alternative basis, we find that the district judge correctly rejected the motion and affidavit as legally insufficient. As with § 144, the provisions of § 455(a) & (b)(1) require recusal only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding." }, { "docid": "137079", "title": "", "text": "district courts are discouraged from granting motions to amend after entering final judgments. See, e.g., Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir.2000) (“In cases where a party seeks to amend her complaint after entry of judgment, ‘we have consistently upheld the denial of leave to amend where the party seeking to amend has not clearly established that he could not reasonably have raised the new matter prior to the trial court’s merits ruling.’ ” (quoting Briddle v. Scott, 63 F.3d .364, 379 (5th Cir. 1995))). Because of the motion’s undue delay and undue prejudice to EMC, the district court did not abuse its discretion in denying Smith leave to amend. See Foman, 371 U.S. at 182, 83 S.Ct. 227 (specifying undue delay and. undue prejudice as two factors trial courts should consider when deciding whether to grant leave to amend). Smith’s motion to amend, filed on September 8, 2003, came after considerable delay. EMC filed its motion in limine invoking Massachusetts law on June 12, 2003. A few days later, the district judge indicated that Massachusetts law applied at least to evidence admitted at trial. Yet Smith did not file the motion to amend until two months after the close of trial. EMC would have been prejudiced if required to defend against Smith’s new theory of recovery. See, e.g., Little v. Liquid Air Corp., 952 F.2d 841, 846 (5th Cir.1992) (affirming an order denying leave to amend where the amended complaint would have “established an entirely new factual basis for the plaintiffs’ claims and, consequently, would have required that the parties reopen discovery and alter their trial strategies”), reinstated in relevant part, 37 F.3d 1069, 1073 & n. 8 (5th Cir. 1994) (en banc). Smith fails to justify either his delay in moving to add the Wage Act claim or its prejudice to EMC. The district court correctly denied Smith’s motion. CONCLUSION Because the district court did not abuse its discretion in denying Smith’s motions for leave to amend his complaint and to receive attorney’s fees, we AFFIRM. . The district court also denied Smith's motion because" }, { "docid": "22534591", "title": "", "text": "the claim concerning the mortality table, which the district court considered to be an entirely new claim that was being raised at a late stage in the litigation, i.e., after discovery had been completed and after defendants had moved for summary judgment. McCarthy II, 372 F.Supp.2d at 700-01. We review the determination of a district court to deny a party leave to amend the complaint under Fed.R.Civ.P. 15(a) for abuse of discretion. Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir.2003). We find that the district court did not abuse its discretion in denying the motion in part and thereby disallowing the claim pertaining to the mortality table. Although Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend “shall be freely given when justice so requires,” it is within the sound discretion of the district court to grant or deny leave to amend. See Zahra v. Town of Southold, 48 F.3d 674, 686 (2d Cir.1995) (upholding the denial of a motion to amend a complaint that was filed two and one-half years after the commencement of the action and three months prior to trial); see also Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir.1985) (upholding the denial of a motion to amend a complaint when discovery already had been completed and the non-movant had already filed a motion for summary judgment). A district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). However, “[o]utright refusal to grant the leave with out any justifying reason for the denial is an abuse of discretion.” Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir.2002). Plaintiffs filed the original complaint in this action on March 12, 2003 and amended it on July 9, 2003. McCarthy II, 372 F.Supp.2d at 699. They moved to amend the complaint a second time on December 21, 2004, more than two months after discovery was completed and" }, { "docid": "22163612", "title": "", "text": "favor of the Winery on its trademark claims, Joseph moved for a new trial pursuant to Fed.R.Civ.P. 59, claiming that Judge Coyle should have disqualified himself under 28 U.S.C. § 455. Judge Coyle denied the motion, finding that the disqualification request was untimely, and that it lacked merit in any event. Joseph appeals the denial of the new trial motion, a decision that is reviewed for abuse of discretion. Hard v. Burlington Northern R.R., 812 F.2d 482, 483 (9th Cir.1987). The same standard of review applies to the district court’s determination of whether recusal or disqualification is necessary under section 455. Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 714 (9th Cir.1990). The disqualification statute reads in relevant part: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter. ... 28 U.S.C. § 455. Prior to assuming- the bench, Judge Coyle was a partner in the law firm of McCormick, Barstow, Sheppard, Wayte & Carruth (“McCormick, Bar-stow”), one of the law firms that is representing the Winery in the present case and had acted as local counsel for the Winery in the litigation over the GALLO SALAME mark. Joseph does not contend that McCormick, Barstow’s current representation of the Winery is grounds for Judge Coyle’s disqualification, but he does contend that the firm’s involvement in the GALLO SALAME litigation requires recu-sal under section 455(a) and (b)(2). He also alleges that Judge Coyle had joint real estate investments with some of his former law partners, creating a reasonable question as to his impartiality. The threshhold issue is the timeliness of Joseph’s argument that Judge Coyle should have disqualified himself and ordered a new trial. Joseph concedes that his counsel was aware of Judge Coyle’s former law partnership at the time Judge" }, { "docid": "23426814", "title": "", "text": "disqualified for cause, for that juror has formed an opinion concerning the merits of the case without basis in the evidence developed at trial. — U.S. at-, 112 S.Ct. at 2235. Grimes’s answers do not raise the primary concern of Morgan; that is, a juror who would automatically recommend a penalty of death regardless of any mitigating evidence. The statement that she would not consider two of the statutory mitigating factors was made in response to defense counsel’s questions and in ignorance of the mandates of Section 848. Jurors are not expected to know the law prior to being properly instructed. More important, Grimes stated that she would follow the district court’s instructions in arriving at her decision. The district court thus did not abuse its discretion in finding that Grimes would be able to follow the court’s instructions. In conclusion, we find that the district court did not abuse its discretion in refusing to excuse for cause these four jurors. 4. Recusal denied Chandler argues that the district court erred in denying Chandler’s motion for recusal. In an order denying Chandler’s pretrial motion to strike the death penalty from the indictment, the district court stated: [b]ased on the evidence the court has heard during the trial of [Chandler’s] co-defendants, this court is satisfied that the government has properly exercised prose- eutorial discretion in not also seeking the death penalty for [Jarrell]. Jarrell was an alcoholic lackey for Chandler who for $500, or maybe simply a fifth of liquor, likely would have done anything Chandler directed him to do. RI-201-3. Chandler suggests that this holding demonstrates that the district court’s lack of impartiality and the necessity of recusal. We review the district court’s denial of a motion to recuse for an abuse of discretion. McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir.1990) (per curiam). A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The test under Section 455(a) is whether an objective, disinterested, lay observer fully-informed of the facts on which recusal was sought would entertain" }, { "docid": "22163611", "title": "", "text": "Inc. v. Accuride Corp., 871 F.2d 1531, 1534 (9th Cir.1989), that modern trademark law protects trade names to the same extent as it protects trademarks. However, Accuride does not hold that a trademark owner’s acquiescence in another’s use of a similar trade name provides a defense to a subsequent trademark infringement action. The cheese package label was the first time Joseph had ever used the Gallo name on a retail product with which consumers have direct contact. The district court further found that the Winery’s response to Joseph’s use of his name on the cheese was swift and firm. Even before Joseph began using the label, Ernest warned him not to. As soon as the Winery became aware that Joseph was using it, Ernest telephoned him again and asked him to stop. These findings, coupled with the finding of a lack of prejudice, amply support the conclusion that the district court considered Joseph’s equitable defenses and rejected them on their merits. III. Denial of Joseph’s Motion for New Trial Following the district court’s ruling in favor of the Winery on its trademark claims, Joseph moved for a new trial pursuant to Fed.R.Civ.P. 59, claiming that Judge Coyle should have disqualified himself under 28 U.S.C. § 455. Judge Coyle denied the motion, finding that the disqualification request was untimely, and that it lacked merit in any event. Joseph appeals the denial of the new trial motion, a decision that is reviewed for abuse of discretion. Hard v. Burlington Northern R.R., 812 F.2d 482, 483 (9th Cir.1987). The same standard of review applies to the district court’s determination of whether recusal or disqualification is necessary under section 455. Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 714 (9th Cir.1990). The disqualification statute reads in relevant part: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom" }, { "docid": "22968490", "title": "", "text": "voir dire was otherwise reasonably suffi cient and the district court’s rejection of the supplemental questions was therefore within its discretion. D. Recusal and Judicial Misconduct Prior to trial Payne filed a motion to recuse the district court judge based on the judge’s prior service on the Attorney General’s Commission on Pornography. Payne argued that the judge’s service on the Commission created the appearance of partiality requiring recusal pursuant to 28 U.S.C. § 455(a). We review a district judge’s denial of a motion for recusal for abuse of discretion. United States v. Branco, 798 F.2d 1302, 1304 (9th Cir.1986). Payne also asserts on appeal that the district court judge’s conduct during the case was improper and, specifically, that the district court attacked defense counsel both in and out of the jury’s presence in a manner exceeding the proper role of the court. A trial judge’s comments during the course of a trial giving rise to charges of advocacy or partiality are likewise reviewed for abuse of discretion. United States v. Greene, 698 F.2d 1364, 1374-75 (9th Cir.1983). Title 28 of the United States Code, § 455(a) provides that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The test for disqualification under § 455(a) is an objective one: whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned. United States v. Nelson, 718 F.2d 315 (9th Cir.1983); United States v. Conforte, 624 F.2d 869, 881 (9th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). The district judge served as a member of the Attorney General’s Commission on Pornography from 1985 until it issued its report in July of 1986, prior to the commencement of Payne’s trial. We find the connection between the judge’s service on the Commission and the matters at issue in this case too attenuated to create an appear-anee of bias. The Commission in no way focused on this particular case or even on the type of conduct charged in the case. Nothing that occurred during" }, { "docid": "22566416", "title": "", "text": "an appeal of the merits of that order, a review prohibited by AEDPA in the absence of the issuance of a COA. Instead, as in Tramonte, we are determining whether we must vacate an order that Judge McBryde may have had no authority to enter. Our conclusion that we have jurisdiction to consider whether Judge McBryde abused his discretion in denying Trevino’s recusal motion comports with the ease law of several other circuits, in which courts of appeals have considered whether a district court judge should have recused himself or herself before denying habeas relief without determining that the applicant had made a jurisdictional showing. See Russell v. Lane, 890 F.2d 947, 947 (7th Cir.1989) (finding jurisdiction to consider whether a district court abused its discretion in denying a recusal motion before it denied habeas relief, despite the fact that the issue was unrelated to the applicant’s underlying state-court conviction, because “federal procedural law governing recusal entitles [the petitioner] to have his habeas corpus petition heard by a[n unbiased] judge”); Taylor v. Campbell, 831 F.2d 297, No. 87-5678, 1987 WL 38693, at *2 (6th Cir. Oct. 13, 1987) (unpublished opinion) (vacating a district court’s denial of habeas petition based on violation of recusal statute without granting a certificate of probable cause, the pre-AEDPA equivalent of a COA); Rice v. McKenzie, 581 F.2d 1114, 1118 (4th Cir.1978) (vacating a district court’s denial of a habeas petition brought by a state prisoner because district court abused its discretion in denying recusal motion). We therefore proceed to evaluate Trevino’s claim that Judge McBryde should have recused himself. Trevino brought his recusal motion under 28 U.S.C. § 455(a), which states that “[a]ny ... judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This recu-sal standard is objective; the relevant inquiry is whether a “reasonable man, were he to know all ,the circumstances, would harbor doubts about the judge’s impartiality.” Health Servs. Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir.1986) (internal quotation marks omitted), aff'd, 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988); see" }, { "docid": "7725938", "title": "", "text": "the notice of dismissal and the issue of recusal, the parties set a schedule for further motions on those issues, and the conference ended there. Considerable procedural ructions then ensued. On October 28, ISC formally noticed its motion for Judge Stanton to recuse himself. Nobel in turn, that same day, filed a motion requesting that the district court deem the notice of dismissal to be of no effect and that the court set a new trial date on the petition to compel arbitration. Following briefing on both motions, the court denied ISC’s motion for recusal on November 22, ISC Holding AG v. Nobel Biocare Inv., N.V., 759 F.Supp.2d 289 (S.D.N.Y.2010); the court granted Nobel’s motion and vacated ISC’s notice of dismissal on November 23, ISC Holding AG v. Nobel Biocare Inv. N.V., 759 F.Supp.2d 294 (S.D.N.Y.2010). On November 30, ISC filed a notice of appeal of the vacatur. Following a status conference on December 16, the district court rescheduled the trial to begin on January 18, 2011, over ISC’s objections. ISC then mounted a series of unsuccessful attempts, both in the district court and this Court, to have the trial stayed. On January 18, when the trial began as scheduled, ISC declined to put on any witnesses or otherwise introduce evidence; the district court therefore dismissed the petition to compel arbitration with prejudice, pursuant to Fed.R.Civ.P. 41(b). Following the entry of judgment, ISC timely appealed the dismissal with prejudice; that appeal, consolidated with ISC’s appeal of the vacatur, is before us now. Discussion I. Recusal We begin with Judge Stanton’s denial of ISC’s motion for his recusal, which we review for abuse of discretion. United States v. Carlton, 534 F.3d 97, 100 (2d Cir.2008). Recusal here is governed by 28 U.S.C. § 455(a), which states that “[a]ny ... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This provision is to “be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance.” Liteky v. United States, 510 U.S. 540," }, { "docid": "11160047", "title": "", "text": "se parties generally should be given leave to amend, it is appropriate to dismiss without allowing amendment “where it is obvious that the plaintiff cannot prevail on the facts [s]he has alleged and it would be futile to give [her] an opportunity to amend.” Gee, 627 F.3d at 1195 (internal quotation marks omitted). And finally, “[a] dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile,” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir.2006); see also Gee, 627 F.3d at 1181, 1195 (affirming dismissal with prejudice of claims barred by statute of limitations and claim preclusion). For the reasons discussed, it is patently obvious that Ms. Knight cannot proceed with her claims, and any further opportunity to amend would be futile because her claims would still be barred. Therefore, the district court did not err in dismissing claims sua sponte, in dismissing without affording Ms. Knight an opportunity to amend, or in dismissing the claims with prejudice. Finally, Ms. Knight asserts that the district judge should have recused himself. But she did not request recusal until after the district court dismissed her action and denied her Rule 59 motion. That was too late. “We have held that under either 28 U.S.C. § 144 or § 455, the party seeking recusal must act in a timely fashion to request recusal.” United States v. Stenzel, 49 F.3d 658, 661 (10th Cir.1995). C. Rule 59 Motion We review the denial of a Rule 59 motion for abuse of discretion. See Price v. Wolford, 608 F.3d 698, 706 (10th Cir.2010). Because we have found no reversible error, we also find no abuse of discretion in denying the Rule 59 motion. III. Conclusion The judgment of the district court is affirmed. . Ms. Knight filed notices of appeal naming as appellants herself and her two corporations. We have previously explained to Ms. Knight that as a nonattorney she cannot represent a corporation in federal court. See Mooring I, 388 Fed.Appx. at 823. No counsel has filed a notice" }, { "docid": "22566417", "title": "", "text": "297, No. 87-5678, 1987 WL 38693, at *2 (6th Cir. Oct. 13, 1987) (unpublished opinion) (vacating a district court’s denial of habeas petition based on violation of recusal statute without granting a certificate of probable cause, the pre-AEDPA equivalent of a COA); Rice v. McKenzie, 581 F.2d 1114, 1118 (4th Cir.1978) (vacating a district court’s denial of a habeas petition brought by a state prisoner because district court abused its discretion in denying recusal motion). We therefore proceed to evaluate Trevino’s claim that Judge McBryde should have recused himself. Trevino brought his recusal motion under 28 U.S.C. § 455(a), which states that “[a]ny ... judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This recu-sal standard is objective; the relevant inquiry is whether a “reasonable man, were he to know all ,the circumstances, would harbor doubts about the judge’s impartiality.” Health Servs. Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir.1986) (internal quotation marks omitted), aff'd, 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988); see Air Line Pilots Ass’n, Int'l v. Continental Airlines, Inc. (In re Continental Airlines Corp.), 901 F.2d 1259, 1262 (5th Cir.1990); In re Faulkner, 856 F.2d 716, 720-21 (5th Cir.1988). We review a district court judge’s decision not to recuse himself for abuse of discretion. See United States v. Mizell, 88 F.3d 288, 299 (5th Cir.) (reviewing a district court’s denial of a recusal motion for an abuse of discretion), cert. denied, 519 U.S. 1046, 117 S.Ct. 620, 136 L.Ed.2d 543 (1996); In re City of Houston, 745 F.2d 925, 927 (5th Cir.1984) (“The issue of judicial disqualification is solely one of law. It is a sensitive question of assessing all of the facts and circumstances in order to determine whether the failure to disqualify was an abuse of sound judicial discretion.”) (citation omitted) (internal quotation marks omitted). On the facts of this case we hold that Judge McBryde did not abuse his discretion by failing to recuse himself from Trevino’s case. At oral argument, Trevino’s counsel analogized this case to two recently decided cases where" }, { "docid": "23243470", "title": "", "text": "Co. v. Dominick D'Andrea, Inc., 150 F.3d 245, 252 (3d Cir. 1998). The record contains no indication that New AC attempted to file objections to the Magistrate Judge's March 8, 1999 or April 28, 1999 decisions with the District Court. Accordingly, New AC has waived any challenge it had to these two discovery orders. The August 4, 1999 Order New AC also employs the instant appeal to challenge the District Court's August 4, 1999 denial of its motion seeking the recusal of the District Judge originally assigned to the litigation and the vacatur of all of the orders entered by that Judge during the course of the litigation. In June of 1999, New AC brought this motion seeking the disqualification of the Judge pursuant to 28 U.S.C. §§ 144 and 455. The District Court forcefully rejected New AC's motion both on the ground that the motion was untimely and that it failed on the merits. We review a district court’s denial of a motion for recusal for abuse of discretion. See Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 265 (3d Cir. 1995). We agree with the District Court that New AC's recusal motion fell outside of 28 U.S.C. § 144’s 10-day time limit, see 28 U.S.C. § 144 (providing that an affidavit setting forth the facts and reasons for recusal \"shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time”). We also agree that it was entirely lacking in merit. We therefore conclude that the Court did not abuse its discretion in denying the motion, and affirm the Court's August 4, 1999 order. Attorneys Fees In the conclusion of its opening appellate brief, New AC requests that we set aside all attorneys fees and costs awarded by the District Court to GM in this case. The District Court granted these fees in connection with its determination, in its April 5, 2000 order, that New AC knowingly infringed GM's trademarks and breached Article" }, { "docid": "8437186", "title": "", "text": "the court. Therefore, this matter is ripe for review. II. Analysis of Appeal District courts have jurisdiction to hear appeals from final judgments and orders of the bankruptcy courts. See 28 U.S.C. § 158(a). The district court reviews the bankruptcy court’s conclusions of law de novo, while factual determinations are reviewed under a clearly erroneous standard. See Fed. R. Bankr. P. 8013; Commonwealth of Va. State Educ. Assistance Auth. v. Dillon (In re Dillon), 189 B.R. 382, 384 (W.D.Va.1995); Resolution Trust Corp. v. C. & R.L.C., 165 B.R. 593, 595 (W.D.Va.1994); In re James River Assocs., 148 B.R. 790, 794 (E,D.Va.1992) (quoting In re Morris Communications NC, Inc., 914 F.2d 458, 467 (4th Cir.1990)). The district court may only consider that evidence presented to the bankruptcy court and made part of the record. See Dillon, 189 B.R. at 384. A. Standard for Motion to Recuse A trial judge’s denial of a recusal motion is reviewed for. abuse of discretion. See United States v. Gordon, 61 F.3d 263, 267 (4th Cir.1995). The statute governing judicial disqualification provides that “any justice, judge, or magistrate ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a); see In re Beard, 811 F.2d 818, 827 (4th Cir.1987) (citations omitted) (“The alleged bias ... must result in an opinion on the merits on a basis other \"than that learned by the judge from his participation in the matter. The nature of the judge’s bias must be personal and not judicial.”). A disqualification determination is to be analyzed under this objective standard, which seeks “to foster not only actual impartiality but also the appearance of impartiality.” United States v. Carmichael, 726 F.2d 158, 160 (4th Cir.1984); see Rice v. McKenzie, 581 F.2d 1114, 1116 (4th Cir.1978) (reiterating that the intent of § 455(a) is to reduce situations in which the judge is not in fact biased, but an outside observer might nonetheless have a reasonable basis for questioning the judge’s objectiveness). Disqualifying bias or partiality must generally arise from events, proceedings, or experiences outside the courtroom. See Liteky" } ]

[ { "docid": "22073754", "title": "", "text": "(5) would then turn on whether under § 9 the “employer unit” was the “appropriate” one for collective-bargaining purposes. We need not for present purposes set out the facts as Summarized at length in the Court of Appeals’ opinion. See 171 U. S. App. D. C. 102, 104r-107, 518 F. 2d 1040, 1042-1045 (1975). “[I]n determining the relevant employer, the Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise, N. L. R. B. Twenty-first Arm. Rep. 14r-15 (1956). The controlling criteria, Set out and elaborated in Board decisions, are interrelation of operations, common management, centralized control of labor relations and common ownership.” 380 U. S., at 256. See n. 1, supra. “Were we called upon to pass on the Board's conclusions in the first instance or to make an independent' review of the review by the Court of Appeals, we might well support the Board’s conclusion and reject that of the court below. But Congress has charged the Courts of Appeals and not this Court with the normal and primary responsibility for granting or denying enforcement of Labor Board orders.” 340 U. S., at 502. The Administrative Law Judge’s decision in favor of the Union included a conclusion that the pertinent employees of Kiewit and South Prairie constituted an appropriate unit under § 9 (b). But that conclusion was, of course, preceded by the determination that the two firms were a single employer. In disagreeing on the “employer” issue, the Board was not compelled to reach the § 9 (b) question in order to dismiss the complaint. Compare Radio Union v. Broadcast Service, 380 U. S. 255 (1965), with Packard Motor Co. v. NLRB, 330 U. S. 485, 491-492 (1947)." } ]

[ { "docid": "4904896", "title": "", "text": "the National Labor Relations Board (hereinafter “NLRB”). Williams v. New Orleans Steamship Assoc., 341 F.Supp. 613 (E.D.La.1972). The facts in the present case show no interchange of employees. The standards applied by the National Labor Relations Board, as related in Radio & T.V. Local 1264 v. Broadcast Service of Mobile, 380 U.S. 255, at 256, 85 S.Ct. 876, at 877, 13 L.Ed.2d 789 at 791, are “interrelation of operations, common management, centralized control of labor relations and common ownership.” The NLRB applies these standards to find a single integrated enterprise “only when it appears that they are highly integrated with respect to ownership and operations.” International Union of Operating Engineers, Local 428, 169 NLRB 184 (1968); Riverside Motor Inn, 199 NLRB 1033 (1972). The following analysis of the four NLRB criteria clearly demonstrates that facts do not exist to support a finding that these two defendants “are highly integrated with respect to ownership and operations.” 1. No interrelation of operations: The NLRB has noted that this factor, along with the degree to which control of labor relations is centralized, are the most significant of the four considerations. Joint Council of Teamsters No. 42, 225 NLRB 209 (1976). The factors which bear on the interrelation of operations test are illustrated by the Board’s decision in Western Union Corp., 224 NLRB 274 (1976), aff’d, 571 F.2d 665 (D.C.Cir.1978), which held that Western Union and five other related companies should not be treated as a single employer. Addressing the issue of interrelated operations, it was reasoned as follows: Among the indicia of interrelatedness not shown to be present herein are combined accounting records, bank accounts, lines of credit, payroll preparation, switchboards, telephone numbers, or offices. In such circumstances, we do not find that the mutually convenient arrangements existing between Western Union and the various other Respondents detract from their corporate independence. 224 NLRB at 277. Similarly, in Joint Council of Teamsters No. 42, 225 NLRB 209 (1976), it was noted in rejecting application of the single employer theory that “[t]he operations of the companies were distinctly different. There was no significant interchange of" }, { "docid": "23308175", "title": "", "text": "is appropriate to aggregate multiple entities for the purposes of counting employees. First, where two ostensibly separate entities are “ ‘highly integrated with respect to ownership and operations,’ ” we may count them together under Title VII. McKenzie, 834 F.2d at 933 (quoting Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981)). This is the “single employer” or “integrated enterprise” test. Second, where two entities contract with each other for the performance of some task, and one company retains sufficient control over the terms and conditions of employment of the other company’s employees, we may treat the entities as “joint employers” and aggregate them. See Virgo, 30 F.3d at 1359-60. This is the “joint employer” test. Third, where an employer delegates sufficient control of some traditional rights over employees to a third party, we may treat the third party as an agent of the employer and aggregate the two when counting employees. See Williams, 742 F.2d at 589. This is the “agency” test. See generally 2 Barbara Lin-demann & Paul Grossman, Employment Discrimination Law 1309-17 (3rd ed.1996). The issue before us involves the “single employer” test. In determining whether two non-governmental entities should be consolidated and counted as a single employer, we have applied the standard promulgated in NLRA cases by the National Labor Relations Board. See, e.g., McKenzie, 834 F.2d at 933. This standard sets out four criteria for determining whether nominally separate entities should be treated as an integrated enterprise. Under the so-called “NLRB test,” we look for “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Id.See also Radio and Television Broad. Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). The four-factor NLRB “single employer” test was first applied in the Title VII context in Baker v. Stuart Broad. Co., 560 F.2d 389 (8th Cir.1977). Since that time, most of the circuits considering whether to integrate multiple entities under Title VII have seized upon that" }, { "docid": "2600121", "title": "", "text": "to judges when applying the doctrine and charging jurors if the Supreme Court grants certiorari in this case, as it might well do considering the importance of the issue, and reverses the judgment of this court (and the district court). The single employer test sets out four criteria for determining whether two corporate entities are a single employer: 1) interrelationship of operations; 2) common management; 3) centralized control of labor relations; and 4) common ownership. See NLRB v. Al Bryant, Inc., 711 F.2d 543, 553 (3d Cir.1983). The test’s critical flaw in this context arises primarily from its emphasis on the centralization of labor relations. The majority makes much of the fact that each subsidiary was responsible for its own labor relations. The jury undoubtedly reasoned from the instruction, which was given consistently with this standard, that labor relations were decentralized and that, under the law, Harper and Limbach were therefore separate employers. Given that decentralization of labor relations does not necessarily evidence separate employer status, Chief Judge Sloviter concludes that the entire single employer test should be abandoned in the secondary boycott context. Hence, she advocates a “common sense determination based on the totality of the circumstances” as to whether a firm is a “neutral” in a dispute. See Dissent of Chief Judge Sloviter at 1237. I believe that we should not abandon the test so completely. Instead, I believe that the appropriate standard for determining single employer status in this context should depend on a modification of the single employer test. Two prongs of the test should remain unchanged from the traditional test. Both common ownership and common management are relevant factors to consider in the secondary boycott context. They evidence a commonality of interests between the two entities that is critical to the determination of single employer status. They also serve to bolster the overall purpose of the single employer test, which is to determine whether there genuinely is an “arm’s length relationship found among unintegrated companies.” Local No. 627, Int’l Union of Operating Engineers v. NLRB, 518 F.2d 1040, 1045-46 (D.C.Cir.1975), aff’d as South Prairie Construction" }, { "docid": "22600093", "title": "", "text": "Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (per curiam). This court has noted that the Board’s “single employer” conclusion “is ‘essentially a factual one’ and not to be disturbed provided substantial evidence in the record supports the Board’s findings.” NLRB v. C.K. Smith & Co., 569 F.2d 162, 164 (1st Cir. 1977) (noting that “the sale of essentially similar products via similar distribution methods is also probative of integration ’), cert. denied, 436 U.S. 957, 98 S.Ct. 3070, 57 L.Ed.2d 1122 (1978). The “single employer” finding depends on “all the circumstances of the case,” and none of the above factors is controlling. NLRB v: Don Burgess Construction Corp., 596 F.2d 378, 384 (9th Cir.), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979). Perhaps the most important of the above criteria, in the Board’s eyes, is the degree of centralized control over labor relations policies, although this alone is not determinative. Local 627, Operating Engineers v. NLRB, 518 F.2d 1040, 1046 (D.C. Cir.1975), aff’d in part and vacated in part, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976). In Local 627, the Court of Appeals reversed the Board’s finding of separate employers, relying on the facts that the two companies were wholly-owned operating subsidiaries of the same parent, in related businesses, with an “interchange of key personnel” and some “instances of interchange of employees,” and “a substantial qualitative degree of interrelation of operations and common management — one that we are satisfied would not be found in the arm’s length relationship existing among unintegrated companies.” Id. at 1047. The Supreme Court affirmed the single employer holding. 425 U.S. at 802-03, 96 S.Ct. at 1843-1844. See Royal Typewriter Co. v. NLRB, 533 F.2d 1030, 1043 (8th Cir. 1976) (“A more critical test is whether the controlling company possessed the present and apparent means to exercise its clout in matters of labor negotiations by its divisions or subsidiaries .... ”); Sakrete of Northern California, Inc. v. NLRB, 332 F.2d 902, 907 (9th Cir. 1964) (“If there is overall control of critical" }, { "docid": "22143373", "title": "", "text": "generally Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1075-76 (1st Cir.1981). The showing required to warrant a finding of single-employer status has been described as “highly integrated with respect to ownership and operations.” Fike v. Gold Kist, Inc., 514'F.Supp. 722, 726 (N.D.Ala. 1981), aff’d, 664 F.2d 295 (11th Cir.1982), quoting Riverside Motor Inn, 199 NLRB 1033 (1972) and Operating Engineers, Local 428, 169 NLRB 184 (1968). The test may also be satisfied by a showing that there is an amount of “participation [that] is sufficient and necessary to the total employment process,” even absent “total control or ultimate authority over hiring decisions.” Rivas v. State Board for Community Colleges and Occupational Education, 517 F.Supp. 467, 470 (D.Colo.1981). From the reasoning of the courts in the above-discussed cases and from our examination of the apparent Congressional intent, we adopt a “facts and circumstances” test which pays heed to the factors found relevant to the question of single-employer status in the National Labor Relations Act context. This test seeks to effectuate the broad and remedial purposes of the Act reaffirmed in the comprehensive Equal Employment Opportunity Act of 1972. The appropriate standard is whether, upon review of the circumstances of the intercorporate relationship, Pure exercises a degree of control that exceeds the control normally exercised by a parent corporation which is separate and distinct from the subsidiary corporate entity. When sufficient control is found, the two corporate entities may be given single employer status such that their combined number of employees will be determinative of whether they are subject to Title VII requirements. Having described the degree of control that is necessary, we proceed to evaluate the intercorporate relationship between Pure and Syntax in the light most favorable to the plaintiff. Welsh v. Gibbs, 631 F.2d at 438-39. See also Part II, supra. Pure is the sole owner of Syntax; therefore, common ownership has been demonstrated. Armbruster and Mayes presented evidence that J. David Quinn was the President of Pure and a director and officer of Syntax. By practice and, allegedly by policy of Pure, J. David Quinn had" }, { "docid": "22861191", "title": "", "text": "3070, 57 L.Ed.2d 1122 (1978). To determine whether two or more business entities comprise a single employer, this court has applied the four factors set out in Radio & Television Broadcast Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (per curiam): (1) interrelation of operations, (2) common management, (3) centralized control of labor relations and (4) common ownership. Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1075 (1981). No one of these factors is controlling, nor need all of them be present. Single employer status ultimately depends on “all the circumstances of the case” and is marked by an absence of an “arm’s length relationship found among unintegrated companies.” Local 627, International Union of Operating Engineers v. NLRB, 518 F.2d 1040, 1045-46 (D.C.Cir. 1975), aff’d on this issue sub nom. South Prairie Construction Co. v. Local 627, International Union of Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976). Accord Soule Glass & Glazing Co. v. NLRB, 652 F.2d at 1075; NLRB v. Don Burgess Constr. Corp., 596 F.2d 378, 384 (9th Cir.), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979). Stated otherwise, the fundamental inquiry is whether there exists overall control of critical matters at the policy level. Soule Glass & Glazing Co., 652 F.2d at 1075; Sakrete of Northern California, Inc. v. NLRB, 332 F.2d 902, 907 (9th Cir.1964), cert. denied, 379 U.S. 961, 85 S.Ct. 649, 13 L.Ed.2d 556 (1965). Against this background, we now consider whether the Board’s finding of single employer status is supported by substantial evidence. A. Interrelation of Operations The record unmistakably reflects an interrelation of operations. All of Kenne-bec’s production was purchased by Penn-tech and in turn sold by Pennteeh to the public as a Pennteeh product. Pennteeh did all of Kennebec’s purchasing of materials and supplies. Although Pennteeh and Ken-nebec maintained separate payrolls and bank accounts, and filed separate tax returns, Penntech’s computers were used to process Kennebec’s payroll and employee wage statements. Pennteeh controlled all of Kennebec’s sales, customer relations," }, { "docid": "22861190", "title": "", "text": "purposes and whether a single contract is binding on two separate corporations are not only different questions, but they may have different answers.” Namco Electric, Inc., 653 F.2d at 147. Given the difference in legal issues presented in the section 301 action from those in the section 8(a)(5) unfair labor practice proceeding, collateral estoppel is not applicable. Having thus concluded, we now turn to a consideration of the Board’s single employer determination. IV Single Employer Status The Board’s finding of an unfair labor practice by the companies is premised on its conclusion that Penntech, T.P. and Kennebec constitute a single employer within the meaning of section 2(2) of the Act, 29 U.S.C. § 152(2). The Board’s conclusion that nominally separate corporations constitute a “single employer” is essentially a factual one and “not to be disturbed provided substantial evidence in the record supports the Board’s findings.” NLRB v. Pizza Pizzaz, Inc., 646 F.2d 706, 708 (1st Cir.1981); NLRB v. C.K. Smith & Co., 569 F.2d 162, 164 (1st Cir.1977), cert. denied, 436 U.S. 957, 98 S.Ct. 3070, 57 L.Ed.2d 1122 (1978). To determine whether two or more business entities comprise a single employer, this court has applied the four factors set out in Radio & Television Broadcast Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (per curiam): (1) interrelation of operations, (2) common management, (3) centralized control of labor relations and (4) common ownership. Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1075 (1981). No one of these factors is controlling, nor need all of them be present. Single employer status ultimately depends on “all the circumstances of the case” and is marked by an absence of an “arm’s length relationship found among unintegrated companies.” Local 627, International Union of Operating Engineers v. NLRB, 518 F.2d 1040, 1045-46 (D.C.Cir. 1975), aff’d on this issue sub nom. South Prairie Construction Co. v. Local 627, International Union of Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976). Accord Soule Glass & Glazing Co. v. NLRB, 652 F.2d" }, { "docid": "3068964", "title": "", "text": "that ACL and its barging subsidiaries constitute a single integrated employer. It is the position of ACL that it is not a proper party to these proceedings. In determining whether separate business entities constitute a single integrated employer “the controlling criteria ... are interrelation of operations, common management, centralized control of labor relations and common ownership.” Radio & Television Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). The single employer determination depends upon the particular facts and circumstances of each case, and consequently the federal courts have varied somewhat in their application of the above criteria. . Compare Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1075 (1st Cir. 1981) with Royal Typewriter Co. v. NLRB, 533 F.2d 1030, 1043 (8th Cir. 1976), and Sakrete of Northern Cal., Inc. v. NLRB, 332 F.2d 902, 905-08 (9th Cir. 1964), cert. denied, 379 U.S. 961, 85 S.Ct. 649, 13 L.Ed.2d 556 (1965). In each of the cases cited in the preceding paragraph, the court found either actual control of labor relations (see Soule and Sakrete), or the means to exercise control over labor policies coupled with a course of conduct encouraging such belief (see Royal Typewriter). In S. S. Kresge Co. v. N. L. R. B., 416 F.2d 1225, 1230 (6th Cir. 1969), this court said: We agree with the assertion that control of the essential elements of labor relations is a prerequisite to the existence of a joint-employer relationship. The Board has found single employer status without evidence of control over labor relations when the extent of interrelated operation and common management was substantial. See Local 627, Operating Engineers v. NLRB, 518 F.2d 1040, 1045-46 (D.C.Cir.1975). In the present case, however, we find no evidence in the record that ACL controls the labor relations of its subsidiaries or that the extent of interrelated operation and common management is substantial. We, therefore, conclude that the record does not support the issuance of the injunction as to ACL and that the district court erred in overruling ACL’s motion to dismiss" }, { "docid": "22600092", "title": "", "text": "v. Pepsi-Cola Bottling Go. of Topeka, 613 F.2d 267, 274 (10th Cir. 1980). This observation is particularly pertinent to the instant case, in which eight instances of employer conduct were charged as violating some or all of three provisions of the statute, and where the hearing consumed ten trial days. In light of these standards, we find it necessary to reverse several of the unfair labor practice charges found by the ALJ. See Parts V(B), VI(A), and IX(A), infra. IV. Single Employer The Board held that SGI and its subsidiaries, SGG and SGR, constituted a “single employer” for the purposes of the Act. There is apparently no dispute as to the criteria upon which the single employer issue is to be determined. “[T]he Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise. . .. The controlling criteria, ... are [1] interrelation of operations, [2] common management, [3] centralized control of labor relations and [4] common ownership.” Radio & Television Broadcast Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (per curiam). This court has noted that the Board’s “single employer” conclusion “is ‘essentially a factual one’ and not to be disturbed provided substantial evidence in the record supports the Board’s findings.” NLRB v. C.K. Smith & Co., 569 F.2d 162, 164 (1st Cir. 1977) (noting that “the sale of essentially similar products via similar distribution methods is also probative of integration ’), cert. denied, 436 U.S. 957, 98 S.Ct. 3070, 57 L.Ed.2d 1122 (1978). The “single employer” finding depends on “all the circumstances of the case,” and none of the above factors is controlling. NLRB v: Don Burgess Construction Corp., 596 F.2d 378, 384 (9th Cir.), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979). Perhaps the most important of the above criteria, in the Board’s eyes, is the degree of centralized control over labor relations policies, although this alone is not determinative. Local 627, Operating Engineers v. NLRB, 518 F.2d 1040, 1046 (D.C. Cir.1975), aff’d in part" }, { "docid": "22143372", "title": "", "text": "interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership. See, e.g. NLRB v. Borg Warner Corp., 663 F.2d 666 (6th Cir.) cert. denied, 457 U.S. 1105, 102 S.Ct. 2903, 73 L.Ed.2d 1313 (1981). While each factor is indicative of interrelation and while control over the elements of labor relations is a central concern, see Sheeran v. American Commercial Lines, 683 F.2d 970, 978 (6th Cir.1982), the presence of any single factor in the Title VII context is not conclusive. All four criteria need not be present in all cases and, even when no evidence of common control of labor relations policy is presented, the circumstances may be such that the Title VII single-employer doctrine is applicable. See Metropolitan Detroit Bricklayers v. J.E. Hoetger & Co., 672 F.2d 580, 584 (6th Cir.1982); Local No. 627, Operating Engineers v. NLRB, 518 F.2d 1040, 1045-46 (D.C.Cir.1975), aff’d in relevant part sub nom. South Prairie Construction Co. v. Local 627, Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976); see generally Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1075-76 (1st Cir.1981). The showing required to warrant a finding of single-employer status has been described as “highly integrated with respect to ownership and operations.” Fike v. Gold Kist, Inc., 514'F.Supp. 722, 726 (N.D.Ala. 1981), aff’d, 664 F.2d 295 (11th Cir.1982), quoting Riverside Motor Inn, 199 NLRB 1033 (1972) and Operating Engineers, Local 428, 169 NLRB 184 (1968). The test may also be satisfied by a showing that there is an amount of “participation [that] is sufficient and necessary to the total employment process,” even absent “total control or ultimate authority over hiring decisions.” Rivas v. State Board for Community Colleges and Occupational Education, 517 F.Supp. 467, 470 (D.Colo.1981). From the reasoning of the courts in the above-discussed cases and from our examination of the apparent Congressional intent, we adopt a “facts and circumstances” test which pays heed to the factors found relevant to the question of single-employer status in the National Labor Relations Act context. This test seeks to effectuate the broad and" }, { "docid": "22222764", "title": "", "text": "management are sufficiently interrelated. Whether transfer from one workforce to another constitutes a “promotion” or a “hiring” depends on the facts of each particular case; however, the degree of interrelatedness between companies required before an employee will be considered to have been “promoted” as he transfers from one to the next cannot reasonably be said to exceed that degree of connexity which the courts require for a finding of joint employer or integrated enterprise status. The term “employer” as used in Title VII of the Civil Rights Act was meant to be liberally construed. Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir.1977); Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973). Over the past decade, numerous courts have drawn upon theories and rules developed in the related area of labor relations in determining when separate business entities are sufficiently interrelated for an employee whose Title VII rights have been violated to file a charge against both entities. Thus the rule has emerged that superficially distinct entities may be exposed to liability upon a finding that they represent a single, integrated enterprise: a single employer. Factors considered in determining whether distinct entities constitute an integrated enterprise are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Courts applying this four-part standard in Title VII and related cases have focused on the second factor: centralized control of labor relations. Oaks v. City of Fairhope, 515 F.Supp. 1004 (S.D.Ala.1981); Fike v. Gold Kist, Inc., 514 F.Supp. 722, 727 (N.D.Ala.1981); EEOC v. Cuzzens of Georgia, 15 FEP 1807 (N.D.Ga.1977), rev’d on other grounds, 608 F.2d 1062 (5th Cir.1979). This criterion has been further refined to the point that “[t]he critical question to be answered then is: What entity made the final decisions regarding employment matters related to the person claiming discrimination?” Odriozola v. Superior Cosmetic Distributors, Inc., 531 F.Supp. 1070, 1076 (D.P.R.1982). The record in this case contains conflicting testimony on this question. Celanese plant manager Paul Hime testified that Ce-lanese had no control over ABI’s employment practices and decisions." }, { "docid": "2600541", "title": "", "text": "W and Lambert’s Point; it is not, however, relevant to the relationship between those entities and Lower Lake because this latter relationship did not involve commonality of ownership and management. The union contends that N & W and Lower Lake were “joint employers” because they conducted their business in such a way as to be treated as one for purposes of labor law. The railroad, on the other hand, contends that the joint employer doctrine does not apply to the RLA. We need not address that question, since it is clear that there are insufficient facts to support the trial court’s finding of alter ego or joint employer status. Whether a contractor possesses sufficient control over the work of employees to qualify as a joint employer is essentially a factual issue. Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964). “There are four factors which must be analyzed in determining whether two companies are joint employers: the interrelation of operations between the companies, common management, centralized control of labor relations, and common ownership.” Metropolitan Detroit Bricklayers Dist. Council v. J.E. Hoetger & Co., 672 F.2d 580, 584 (6th Cir.1982). In the present case, the court below did not tailor its findings to these four factors but, instead, listed only the following general findings to support its conclusion that N & W was an employer: Norfolk & Western owns the facility, pays a management fee to Lower Lake Dock, pays all the operating costs, was fully advised as to labor negotiations of Lower Lake Dock, conducted time studies, made recommendations as to reduction in employee numbers, had input on manning schedules and on overtime and holiday pay.... These facts do not support a determination that N & W and Lower Lake were joint employers, nor do they indicate that operations of the two companies were substantially interrelated beyond the extent necessary to the performance of their basic contractual duties. See International House v. NLRB, 676 F.2d 906, 915 (2d Cir.1982). Considering the “cost-plus” basis of payment required by the management agreement, the evidence recited by the" }, { "docid": "1723370", "title": "", "text": "Hoetger and Hawkins were joint employers should not be given collateral estoppel effect in this proceeding. It is therefore necessary to undertake an independent review of the facts to determine whether Hoetger and Hawkins were joint employers. There are four factors which must be analyzed in determining whether two companies are joint employers: the interrelation of operations between the companies, common management, centralized control of labor relations, and common ownership. Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). All four criteria need not be present. Local No. 627, International Union of Operating Engineers v. N. L. R. B., 518 F.2d 1040, 1046 (D.C.Cir.1975), aff’d in part, vacated in part sub nom. South Prairie Construction Co. v. Local No. 627, International Union of Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 782 (1976). The issue is essentially factual. Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 898, 11 L.Ed.2d 849 (1964). Applying these criteria to the record in this case, there is no showing that Hoetger and Hawkins integrated their operations on the job site. They were not under common management or control. Their relationship was purely contractual. The only element which would arguably support a finding that the two companies were joint employers is Hoetger’s “control” over Hawkins’s labor relations through the subcontract provisions requiring Hawkins to hire Union workers and retaining the right to escrow funds to insure that Union benefits were paid. We do not believe that the degree of control Hoetger exercised over Hawkins’s labor relations was sufficient to establish a joint employer relationship. There is no showing in the record that Hoetger exercised any day-to-day control over Hawkins’s relations with its employees. Although the subcontract between Hoetger and Hawkins required that only Union members be hired, there is no showing that any actual hiring or firing decisions were made by Hoetger. In addition, there is no showing that Hoet ger supervised Hawkins’s employees in the performance of the work. Indeed, the contract between" }, { "docid": "15661469", "title": "", "text": "plaintiffs must show that TTU was their “employer” within the meaning of those statutes. It is undisputed that Barnes & Noble, not TTU, was plaintiffs’ direct employer. Although a direct employment relationship provides the usual basis for liability under the ADEA or ADA, courts have fashioned various doctrines by which a defendant that does not directly employ a plaintiff may still be considered an “employer” under those statutes. In one approach, courts examine whether two entities are so interrelated that they may be considered a “single employer” of an “integrated enterprise.” See, e.g., York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360 (6th Cir.1982). In another approach, courts consider whether one defendant has control over another company’s employees sufficient to show that the two companies are acting as a “joint employer” of those employees. See, e.g., Carrier Corp. v. NLRB, 768 F.2d 778 (6th Cir.1985); Rivas v. Federacion de Asociaciones Pecuarias de Puerto Rico, 929 F.2d 814 (1st Cir.1991). A third approach examines whether the person or entity that took the allegedly illegal employment action was acting as the agent of another company, which may then be held liable as the plaintiffs’ employer. See, e.g., Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117 (5th Cir.1993); Fike v. Gold Kist, Inc., 514 F.Supp. 722 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981). Here, plaintiffs seek to hold TTU liable for the actions of Barnes & Noble under two of these theories. First, they argue that TTU and Barnes & Noble should be considered a “single employer.” Alternatively, they contend that TTU should be held liable for the conduct of Barnes & Noble under agency principles. A. Single Employer Under the “single employer” or. “integrated enterprise” doctrine, two companies may be considered so interrelated that they constitute a single employer subject to liability under the ADEA and/or the ADA. See Armbruster, 711 F.2d at 1337-38 (Title VII); York, 684 F.2d at 362 (ADEÁ). In determining whether to treat two entities as a single employer, courts examine the following four factors: (1). interrelation of operations, i.e., common offices, common" }, { "docid": "4904895", "title": "", "text": "held that two corporations cán be treated as a single entity for the purpose of determining subject matter jurisdiction only when the facts show that the separate existence of the two corporations was a sham. Mas Marques v. Digital Equipment Corp., 24 FEP 1286 (1st Cir. 1980); Hassell v. Harmon Foods, Inc., 336 F.Supp. 432 (W.D.Tenn.1971), aff’d, 454 F.2d 199 (6th Cir. 1972); Lottice v. Ingersoil-Rand Co., 14 FEP 708, 709 (N.D.Cal.1977); Armbruster v. Quinn, 23 FEP 1801 (E.D.Mich.1980). In Armbruster the court emphasized as the most important factor in its analysis “centralized control of labor relations.” It is clear in this case that Gold Kist had no role in hiring or firing Farmers Mutual employees or in fixing its employment practices. Gold Kist owns no interest at all in Farmers Mutual. The two corporations are not in a parent-subsidiary relationship. There can .be no serious contention that either corporation could be held liable for the debts of the other. Courts have also looked to interchange of employees and standards which have been used by the National Labor Relations Board (hereinafter “NLRB”). Williams v. New Orleans Steamship Assoc., 341 F.Supp. 613 (E.D.La.1972). The facts in the present case show no interchange of employees. The standards applied by the National Labor Relations Board, as related in Radio & T.V. Local 1264 v. Broadcast Service of Mobile, 380 U.S. 255, at 256, 85 S.Ct. 876, at 877, 13 L.Ed.2d 789 at 791, are “interrelation of operations, common management, centralized control of labor relations and common ownership.” The NLRB applies these standards to find a single integrated enterprise “only when it appears that they are highly integrated with respect to ownership and operations.” International Union of Operating Engineers, Local 428, 169 NLRB 184 (1968); Riverside Motor Inn, 199 NLRB 1033 (1972). The following analysis of the four NLRB criteria clearly demonstrates that facts do not exist to support a finding that these two defendants “are highly integrated with respect to ownership and operations.” 1. No interrelation of operations: The NLRB has noted that this factor, along with the degree to which control of" }, { "docid": "22143371", "title": "", "text": "subsidiary’s conduct as that of both. See Hassell v. Harmon Foods, Inc., 454 F.2d at 200; see also Watson v. Gulf & Western Industries, 650 F.2d 990, 993 (9th Cir.1981) (Absent special circumstances, parent is not responsible for subsidiary’s Title VII violations). For guidance in testing the degree of interrelationship, we look to the four-part test formulated by the NLRB and approved by the Supreme Court in Radio Union v. Broadcast Service, 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam). Accord Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir. 1980); Williams v. Evangelical Retirement Homes of St. Louis, 594 F.2d 701, 703 (8th Cir.1979); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir.1977); see also EEOC v. American National Bank, 652 F.2d 1176, 1185 (4th Cir.1981), cert, denied, — U.S. —, 103 S.Ct. 235, 74 L.Ed.2d 186; cf. Dumas v. Town of Mt. Vernon, 612 F.2d 974, 980 n. 9 (5th Cir.1980). This Circuit has also adopted this test which assesses the degree of (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership. See, e.g. NLRB v. Borg Warner Corp., 663 F.2d 666 (6th Cir.) cert. denied, 457 U.S. 1105, 102 S.Ct. 2903, 73 L.Ed.2d 1313 (1981). While each factor is indicative of interrelation and while control over the elements of labor relations is a central concern, see Sheeran v. American Commercial Lines, 683 F.2d 970, 978 (6th Cir.1982), the presence of any single factor in the Title VII context is not conclusive. All four criteria need not be present in all cases and, even when no evidence of common control of labor relations policy is presented, the circumstances may be such that the Title VII single-employer doctrine is applicable. See Metropolitan Detroit Bricklayers v. J.E. Hoetger & Co., 672 F.2d 580, 584 (6th Cir.1982); Local No. 627, Operating Engineers v. NLRB, 518 F.2d 1040, 1045-46 (D.C.Cir.1975), aff’d in relevant part sub nom. South Prairie Construction Co. v. Local 627, Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976); see" }, { "docid": "23289066", "title": "", "text": "genuine issue concerning whether Davenport-Harris and Protective should be treated as a single entity. The predominant trend in determining whether two businesses should be treated as a single or joint employer under § 2000e(b) is to apply the standards promulgated by the National Labor Relations Board (NLRB). See Equal Employment Opportunity Comm’n v. Wooster Brush Co. Employees Relief Ass’n, 727 F.2d 566, 572 (6th Cir. 1984); Childs v. Local 18, Int’l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir.1983); Trevino, 701 F.2d at 404; Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir.1980); Baker, 560 F.2d at 392; Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981). The NLRB factors include: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. The showing required to warrant a finding of single employer status has been described as “highly integrated with respect to ownership and operations.” Fike, 514 F.Supp. at 726. While it would be premature on the basis of the record before this panel to conclude that Davenport-Harris and Protective are, in essence, a single employer, the evidence clearly raises a genuine issue of material fact. Even counsel for appellees conceded at oral argument that there was common ownership, and, to some extent, common management. Summary judgment was inappropriate because the evidence presented by McKenzie was substantial and is to be believed by law, and all justifiable inferences are to be drawn in her favor. McKenzie presented evidence that the Harris family founded and owned Davenport-Harris and Protective. Davenport-Harris is a stock corporation, and the majority of its stock is owned by Protective. For the past twenty years, everyone that has owned stock in Davenport-Harris has also owned stock in Protective. Everyone owning stock in the companies are heirs of the founders of the companies. Virgil Harris is the President of both companies. He also controlled personnel management of both companies. Paul Harris is the Secretary of both companies, as well as Vice-President of Protective. Both Davenport-Harris’ and Protective’s" }, { "docid": "8732538", "title": "", "text": "916 (N.D.Ga.1973). The criteria and standards developed in other types of employment discrimination cases when dealing with similar problems in interpreting the definitions of employer have been applied to ADEA cases. See: Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) (Title VII, 42 U.S.C. Sec. 2000e, et seq.) One such criteria has been the formula used by the National Labor Relations Board (NLRB) and adopted by the Supreme Court in Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). Under this test the following factors are examined: (1) interrelation of operations, (2) common management, (3) common control of labor relations and (4) common ownership of financial control. Id. at p. 256, 85 S.Ct. at p. 877; Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir. 1980); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977). Another method used by the courts to deal with this situation is by examining the relationships between the organizations to see if there exists an agency relationship that could establish an employment nexus between them. The agency theory is based on the definition of the term employer by the ADEA as including an agent of an employer. The employment nexus is established when one of the corporations has been the agent of the other with respect to employment practices. Mas Marques, ante, at 27; Fike v. Gold Kist, Inc., infra, at p. 728; Linkskey v. Heidelberg Eastern, ante, at 1183. Other courts have approached the problem as one analogous to the alter-ego theory developed in the law of corporations. Viewed in this light, the relations between the corporations have to be so intermingled as to demonstrate that separate existence is a “sham.” Mas Marques, ante, at 27; Fike v. Gold Kist, Inc., 514 F.Supp. 722, 725 (N.D.Ala.1981); Armbruster v. Quinn, 498 F.Supp. 858, 862 (E.D.Mich.1980); Hassell v. Harmon Foods, Inc., 336 F.Supp. 432 (W.D.Tenn.1971), aff’d 454 F.2d 199 (6th Cir. 1972). See also: Annotation 49 A.L.R.Fed. 900. By scrutinizing the corporate relationships" }, { "docid": "15661470", "title": "", "text": "was acting as the agent of another company, which may then be held liable as the plaintiffs’ employer. See, e.g., Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117 (5th Cir.1993); Fike v. Gold Kist, Inc., 514 F.Supp. 722 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981). Here, plaintiffs seek to hold TTU liable for the actions of Barnes & Noble under two of these theories. First, they argue that TTU and Barnes & Noble should be considered a “single employer.” Alternatively, they contend that TTU should be held liable for the conduct of Barnes & Noble under agency principles. A. Single Employer Under the “single employer” or. “integrated enterprise” doctrine, two companies may be considered so interrelated that they constitute a single employer subject to liability under the ADEA and/or the ADA. See Armbruster, 711 F.2d at 1337-38 (Title VII); York, 684 F.2d at 362 (ADEÁ). In determining whether to treat two entities as a single employer, courts examine the following four factors: (1). interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment; (2) common management, common directors and boards; (3) centralized control of labor relations and personnel; and (4) common ownership and financial control. York, 684 F.2d at 362. None of these factors is conclusive, and all four need not be met in every case. Armbruster, 711 F.2d at 1337-38. Nevertheless, control over labor relations is a central concern. Id. at 1337; Murray v. Miner, 74 F.3d 402, 404 (2d Cir.1996); Frank v. U.S. West, Inc., 3 F.3d 1357, 1363 (10th Cir.1993); Rogers v. Sugar Tree Prod., Inc., 7 F.3d 577, 582 (7th Cir.1993); Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983). Examining the four factors in the context of this case, it is clear that TTU and Barnes & Noble cannot be treated as an integrated enterprise. First, there is insufficient evidence of interrelation of operations. TTU and Barnes & Noble each kept their own records, and maintained separate bank accounts and offices. See York, 684 F.2d at 362. There is simply no evidence of the type" }, { "docid": "23289065", "title": "", "text": "at one time. A liberal construction must be accorded to the term: employer. Trevino v. Celanese Corp., 701 F.2d 397, 403 (5th Cir. 1983); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir.1977). McKenzie tried to prove to the trial court that Davenport-Harris’ and Protective’s activities, operations, ownership and management are sufficiently interrelated to be perceived as a single employer for purposes of Title VII. Counsel for the defendants contended that the separate corporate existence of Davenport-Harris and Protective could not be disregarded. Based on three depositions and a handful of exhibits alone, the district court judge determined that Protective could not be considered an employer of McKenzie. The court made this determination despite its finding that “there is substantial similarity in their corporate officers and in their directors, as well as a common business interest. The ownership of the two corporations, in effect, is also quite similar.” The court also found that “there is a significant degree of interrelationship.” Our role is to decide whether McKenzie presented sufficient evidence to create a genuine issue concerning whether Davenport-Harris and Protective should be treated as a single entity. The predominant trend in determining whether two businesses should be treated as a single or joint employer under § 2000e(b) is to apply the standards promulgated by the National Labor Relations Board (NLRB). See Equal Employment Opportunity Comm’n v. Wooster Brush Co. Employees Relief Ass’n, 727 F.2d 566, 572 (6th Cir. 1984); Childs v. Local 18, Int’l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir.1983); Trevino, 701 F.2d at 404; Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir.1980); Baker, 560 F.2d at 392; Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981). The NLRB factors include: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. The showing required to warrant a finding of single employer status has been described as “highly integrated with respect to ownership and operations.” Fike, 514 F.Supp. at 726. While it would be" } ]

[ { "docid": "22869686", "title": "", "text": "this appeal urging that the trial court erred in denying its motions for a directed verdict and a judgment n. o. v. because the evidence was insufficient to warrant jury submission. It also argues that the attorney’s fee award is improper because Whiting should not have prevailed on the evidence educed. Whiting cross-appeals on the basis that the trial court misstepped by not instructing the jury that it could award further equitable relief, viz: reinstatement, and compensatory as well as punitive damages. He does not assert that the trial court erred in not awarding reinstatement. Whiting also complains that the attorney’s fee award is parsimonious. I. BASES FOR RELIEF A. Section 706 of Title VII The plaintiff in a section 706 suit, such as this, must carry the initial burden of establishing a prima facie case of racial discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 32 L.Ed.2d 668 (1973). Although Green was a hiring case, its four factors for establishing a prima facie case have recently been extended to discharge situations by this circuit. Burdine v. Texas Department of Community Affairs, 608 F.2d 563 (5th Cir. 1979); Marks v. Prattco, Inc., 607 F.2d 1153 (5th Cir. 1979). The plaintiff must show that (1) he belongs to a group protected by the statute; (2) he was qualified for the job from which he was suspended and not rehired; (3) he was terminated; and (4) after his termination, the employer hired a person not in plaintiff’s protected class, or retained those, having comparable or lesser qualifications, not in plaintiff’s protected class. See Green, 411 U.S. at 802, 93 S.Ct. at 1824. An unanswered Green prima facie showing results in an inference of discriminatory animus in these disparate treatment cases. Furnco Constructions Corp. v. Waters, 438 U.S. 567, 579-80, 98 S.Ct. 2943, 2950-51, 57 L.Ed.2d 957 (1978). Once the plaintiff has established a prima facie case, the employer must articulate some legitimate, nondiscriminatory reason for the termination. Board of Trustees v. Sweeny, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978); Waters, 438 U.S. at" } ]

[ { "docid": "23324372", "title": "", "text": "is a case of an employee, whose work performance, under her own testimony, was unsatisfactory and the mere fact that she had filed an EEOC charge could not immu nize her from legitimate disciplining for unsatisfactory performance. Section 704(a) was never intended to be a shield for the admittedly delinquent employee. See Dickerson v. Metropolitan Dade County, 659 F.2d 574, 580-81 (5th Cir.1981); Hochstadt v. Worcester Foundation, Etc., 545 F.2d 222 (1st Cir.1976). To make out a case of retaliatory discharge, it was necessary under some of the decisions for Russell to show that “but for” her EEOC charge she would not have been discharged. Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir.1981) (“Plaintiff failed to show that the defendant’s reasons for her discharge were pretextual, i.e., that her race was a ‘but for’ cause or determining factor for her discharge”); Mack v. Cape Elizabeth School Bd., 553 F.2d 720, 722 (1st Cir.1977) (“... that but for them she would have been re-employed”); Staniewicz v. Beecham, Inc., 687 F.2d 526, 528 (1st Cir.1982); cf., Lovelace v. Sherwin Williams Co., 681 F.2d 230 (4th Cir.1982), and Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Col.L.Rev. 292 (1982). We find in all this no evidence of pretext in order to conceal a retaliatory intent and beyond question there was no racial bias involved. We accordingly reverse any finding of discrimination in Russell’s treatment in this regard. The second claim of the other intervenorplaintiff Cooper presented a less complicated set of facts. She had been initially employed at pay grade 3 but she had been given what was, except for a delay occasioned by a maternity leave, roughly annual promotions until her promotion on August 12, 1974, when she had reached the level of pay grade 6. At that time her supervisor inquired of her whether she would like to move to the position of settlement clerk with an increase in pay grade to 7 and with a salary increase. She accepted the offer and on August 12 began her duties as" }, { "docid": "6216524", "title": "", "text": "that they determined De Anda had acted in a manner which could have placed patients’ lives in jeopardy. De Anda did not introduce any experts to testify about her reaction to the “foreign substance” incident, nor did St. Joseph. De Anda introduced written evidence that the solutions being given in the troublesome IV were, in fact, compatible and St. Joseph introduced evidence that the solutions could be incompatible. After reviewing the sequence of events described above and the testimony relevant to them, the trial court found no actionable retaliation by St. Joseph against De Anda and no jurisdiction to decide the § 1981 claim. De Anda appeals, claiming that the trial court erred in its determination that no retaliation existed because it failed to complete the legal analysis required in a Title VII case, i.e., to consider whether St. Joseph’s articulated reasons for De Anda’s discharge were pretextual. De Anda also appeals the court’s determination that it did not have jurisdiction under § 1981. We address each argument in turn. II. THE TITLE VII CLAIM OF RETALIATION A. The Standard of Review We first note that our standard of review of the findings of fact of the trial court in this Title VII case is dependent upon whether the finding at issue is one of ultimate fact or subsidiary fact. Wilkins v. University of Houston, 654 F.2d 388 at 389-90 (5th Cir. 1981). In a Title VII case, the ultimate finding of fact, whether there was unlawful discrimination, is subject to independent review by this court. Wilkins, 654 F.2d 388 at 389-90; Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981); Rhode v. K. O. Steel Castings, Inc., 649 F.2d 317 (5th Cir. 1981); Danner v. United States Civil Service Commission, 635 F.2d 427 (5th Cir. 1981); Jefferies v. Harris County Community Action Association, 615 F.2d 1025, 1031, n. 5 (5th Cir. 1980). In doing so however, this court is bound by the trial court’s findings of subsidiary fact that are not clearly erroneous. Wilkins, 654 F.2d at 390. This twofold review thus mandates that “the" }, { "docid": "6216525", "title": "", "text": "OF RETALIATION A. The Standard of Review We first note that our standard of review of the findings of fact of the trial court in this Title VII case is dependent upon whether the finding at issue is one of ultimate fact or subsidiary fact. Wilkins v. University of Houston, 654 F.2d 388 at 389-90 (5th Cir. 1981). In a Title VII case, the ultimate finding of fact, whether there was unlawful discrimination, is subject to independent review by this court. Wilkins, 654 F.2d 388 at 389-90; Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981); Rhode v. K. O. Steel Castings, Inc., 649 F.2d 317 (5th Cir. 1981); Danner v. United States Civil Service Commission, 635 F.2d 427 (5th Cir. 1981); Jefferies v. Harris County Community Action Association, 615 F.2d 1025, 1031, n. 5 (5th Cir. 1980). In doing so however, this court is bound by the trial court’s findings of subsidiary fact that are not clearly erroneous. Wilkins, 654 F.2d at 390. This twofold review thus mandates that “the reviewing court ... determine whether there are enough ‘subsidiary facts’ to undergird the ultimate fact.” Jefferies, 615 F.2d at 1031, n. 5 (citation omitted). If sufficient factual findings exist, the court must review the factual findings under the clearly erroneous standard in order to then be in a position to independently review the ultimate finding as to whether discrimination exists. If the factual findings are absent, the case must be remanded for such findings, Jefferies, 615 F.2d at 1031. Additionally, an independent review of the trial court’s decision must be undertaken if we determine that the findings were made “under an erroneous view of controlling legal principles.” Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374 (5th Cir. 1978), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979). In summary, assuming the trial court has applied correct controlling legal principles to its findings of fact, in a Title VII case, the reviewing court must (1) determine if there are sufficient findings of subsidiary facts upon which a review may be made;" }, { "docid": "4061847", "title": "", "text": "MEMORANDUM OPINION PROPST, District Judge. This cause came on to be heard on the defendant’s Motion for Directed Verdict after plaintiff had rested. This court previously denied defendant’s motion for summary judgment because plaintiff had made some suggestion that she would be able to establish some inference as to the third element of a retaliation claim enunciated in Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1328 (5th Cir.1980). The plaintiff’s suggested evidence was that although defendant had purportedly failed to reassign plaintiff to the Hoover area because of customer complaints, it had, in the past, not acted on such complaints. While the “evidence” offered in opposition to the motion for summary judgment may not have been adequate or even admissible or in the form subject to consideration, the court gave the benefit of the doubt to the plaintiff. At the trial, however, plaintiff offered none of this evidence. After plaintiff first conditionally rested, the court allowed her to re-open the evidence. Although the court had not then researched the issue, the court sensed that merely offering evidence of the first two Whatley elements was not sufficient to establish a prima facie case. Research proved this “sense” to be on target. The following are a series of quotes from controlling and persuasive cases. In Dickerson v. Metropolitan Dade County, 659 F.2d 574, 580-81 (5th Cir. Unit B 1981), the court stated: To establish a violation of section 704(a), the plaintiff must meet the requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir.1981); Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1327-28 (5th Cir.1980). First, the complainant in a Title VII action bears the initial burden of establishing a prima facie case of retaliatory conduct. To prove a prima facie case under section 704(a) the Title VII plaintiff must establish by a preponderance of the evidence that he engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that" }, { "docid": "22235863", "title": "", "text": "that branch of labor law well established. See, e.g., NLRB v. Tricor Products, Inc., 636 F.2d 266, 271 (10th Cir.1980); J.P. Stevens & Co., Inc. v. NLRB, 461 F.2d 490, 494-95 (4th Cir.1972); NLRB v. Century Broadcasting Corp., 419 F.2d 771 (8th Cir.1969); Bausch & Lomb Optical Co. v. NLRB, 217 F.2d 575, 577 (2d Cir.1954); NLRB v. Saxe-Glassman Shoe Corp., 201 F.2d 238, 243 (1st Cir.1953). The courts of appeals which have addressed the question havé recognized the appropriateness of its application to the branch of labor law encompassed in Title VIL Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983); Irving v. Dubuque Packing Co., 689 F.2d 170, 173-74 (10th Cir.1982); Nolan v. Cleland, 686 F.2d 806, 812-15 (9th Cir.1982); Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982); Clark v. Marsh, 665 F.2d 1168, 1174-76 (D.C.Cir.1981); Meyer v. Brown & Root Const. Co., 661 F.2d 369, 372 (5th Cir.1981); Welch v. University of Texas and Its Marine Science Institute, 659 F.2d 531, 533-34 (5th Cir.1981); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981); Pittman v. Hattiesburg Municipal Separate School District, 644 F.2d 1071, 1077 (5th Cir.1981); Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980); Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977); Jacobs v. Martin Sweets Co., Inc., 550 F.2d 364, 369 (6th Cir.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977); Thompson v. McDonnell Douglas Corp., 552 F.2d 220, 223 (8th Cir.1977); Muller v. United States Steel Corp., 509 F.2d 923, 929 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). But while the application of the constructive discharge doctrine to Title VII cases has received apparently universal recognition among the courts of appeals which have addressed that issue, there is a divergence of opinion as to the findings necessary for such application in specific instances. The Eighth Circuit Court of Appeals in Johnson v. Bunny Bread Co., supra, and the Tenth Circuit Court of Appeals in Muller v. United States Steel Co., supra," }, { "docid": "4061848", "title": "", "text": "sensed that merely offering evidence of the first two Whatley elements was not sufficient to establish a prima facie case. Research proved this “sense” to be on target. The following are a series of quotes from controlling and persuasive cases. In Dickerson v. Metropolitan Dade County, 659 F.2d 574, 580-81 (5th Cir. Unit B 1981), the court stated: To establish a violation of section 704(a), the plaintiff must meet the requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir.1981); Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1327-28 (5th Cir.1980). First, the complainant in a Title VII action bears the initial burden of establishing a prima facie case of retaliatory conduct. To prove a prima facie case under section 704(a) the Title VII plaintiff must establish by a preponderance of the evidence that he engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in protected activity and the adverse employment action. Smalley v. City of Eatonville, 640 F.2d 765, 769 (5th Cir.1981); Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d at 1328. There is no dispute that Dickerson established the first two elements of a prima facie case of retaliatory firing. He filed a complaint with the EEOC in 1972, amending it in 1976 and 1977, and he was discharged from employment. After a thorough examination of the record, however, we are convinced that the plaintiff failed to establish the requisite causal link between the complaints and his discharge. Dickerson adduced no evidence to suggest a causal connection except for proof of a disharmonious relationship with Gancher and the fact of discharge four and one-half years after he filed his original complaint with the EEOC. Rather, the evidence demonstrated that DERM fired Dickerson because of excess absenteeism, poor work relations with the laboratory staff, and inadequate work. (Emphasis added). In De Anda v. St. Joseph Hospital, 671 F.2d 850" }, { "docid": "23614009", "title": "", "text": "the EEOC issued Lewis his Notice of Right to Sue, noting that “No reasonable cause was found to believe that the allegations made in your charge are true, as indicated in the attached determination.” . Presumably suffered by him in Trinidad, since he had been working for Brown & Root off and on, at advancing pay scales, during most of his adult life. . Appellant objects to dismissal for failure to adduce evidence of racial animus because, he asserts, he had established a prima facie case and defendant had not articulated a legitimate nondiscriminatory reason for the decision not to rehire. See Jackson v. City of Killeen, 654 F.2d 1181, 1183 (5th Cir.1981) (relying on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). We reject this argument; appellant misunderstands the decision below. The evidence supporting defendant’s nondiscriminatory reasons was offered by plaintiff himself, during his trial testimony. See Tr. 29; 44-45. Moreover, McDonnell Douglas represents merely a division of eviden-tiary burdens, and, in the words of the Supreme Court, “[t]he ultimate burden of persuading the trier of fact that a defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Finally, plaintiff had not presented any evidence that the defendant’s nondiscriminatory reasons were a mere pretext. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978). Thus, the dismissal on the merits below properly respected the burdens of proof established for this type of case. See also United States Postal Service Board of Governors v. Aikens, — U.S. —, —, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403, 409 (1983). “Because this case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie case. We think that by framing the issue in these terms they" }, { "docid": "22235862", "title": "", "text": "OPINION OF THE COURT GIBBONS, Circuit Judge: Suzanne Goss appeals from a judgment in her favor in her suit charging her former employer, Exxon Office Systems Company [Exxon] with sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 20G0e et seq. (1976). She contends that the judgment in her favor, totaling $101,961.02, is inadequate. Exxon cross-appeals, conceding that Goss was subjected to sex discrimination, but contending that the trial. court erred, factually and legally, in concluding that such discrimination amounted to a constructive discharge, and in determining the amount of her damages. We affirm. I. Constructive Discharge This court has not heretofore considered whether acts of discrimination in violation of Title VII can make working conditions so intolerable that a reasonable employee would be forced to resign. Classifying a termination as a constructive discharge rather than a voluntary quit has significant ramifications with respect to the scope of relief. The constructive discharge doctrine was first developed under the National Labor Relations Act, and is in that branch of labor law well established. See, e.g., NLRB v. Tricor Products, Inc., 636 F.2d 266, 271 (10th Cir.1980); J.P. Stevens & Co., Inc. v. NLRB, 461 F.2d 490, 494-95 (4th Cir.1972); NLRB v. Century Broadcasting Corp., 419 F.2d 771 (8th Cir.1969); Bausch & Lomb Optical Co. v. NLRB, 217 F.2d 575, 577 (2d Cir.1954); NLRB v. Saxe-Glassman Shoe Corp., 201 F.2d 238, 243 (1st Cir.1953). The courts of appeals which have addressed the question havé recognized the appropriateness of its application to the branch of labor law encompassed in Title VIL Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983); Irving v. Dubuque Packing Co., 689 F.2d 170, 173-74 (10th Cir.1982); Nolan v. Cleland, 686 F.2d 806, 812-15 (9th Cir.1982); Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982); Clark v. Marsh, 665 F.2d 1168, 1174-76 (D.C.Cir.1981); Meyer v. Brown & Root Const. Co., 661 F.2d 369, 372 (5th Cir.1981); Welch v. University of Texas and Its Marine Science Institute, 659 F.2d 531, 533-34 (5th Cir.1981); Johnson v. Bunny Bread" }, { "docid": "235127", "title": "", "text": "802, 93 S.Ct. at 1824. The burden of production then shifts to the employer to articulate some legitimate nondiscriminatory reason for terminating the employee. Id. See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). Finally, the burden again shifts and the plaintiff must be afforded the opportunity to demonstrate that the alleged nondiscriminatory basis for firing was merely a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. at 804, 93 S.Ct. at 1825; Corley v. Jackson Police Department, 566 F.2d 994, 998 (5th Cir. 1978). The trial court concluded that Dickerson failed to meet his initial burden of establishing a prima facie case of retaliatory termination. To prove a prima facie case under section 704(a) the Title VII plaintiff must establish by a preponderance of the evidence (1) that he engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in protected activity and the adverse employment action. Smalley v. City of Eatonville, 640 F.2d 765, 769 (5th Cir. 1981); Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d at 1328. Although we are bound by the trial court’s subsidiary findings of fact unless they are clearly erroneous, we, as an appellate court, must independently review the merits of Dickerson’s allegation of retaliatory termination. Gupta v. East Texas State University, 654 F.2d at 414; East v. Romine, Inc., 518 F.2d 332, 339 (5th Cir. 1975). There is no dispute that Dickerson established the first two elements of a pri ma facie case of retaliatory firing. He filed a complaint with the EEOC in 1972, amending it in 1976 and 1977, and he was discharged from employment. After a thorough examination of the record, however, we are convinced that the plaintiff failed to establish the requisite causal link between the complaints and his discharge. Dickerson adduced no evidence to suggest a causal connection except for proof of a disharmonious relationship with Gancher and the fact of discharge four and one-half years after" }, { "docid": "22659974", "title": "", "text": "relevant passage of the District Court opinion read as follows: “By ranking the twenty-eight USW and IAM departments according to some perceived order of desirability, one could . . . attempt to measure the relative effect of the no-transfer rule on white and black employees .... It may well be that a somewhat greater impact was felt by blacks than whites although . . . this conclusion is by no means certain.” Id., at A-134. The original complaint in this case did not mention IAM. Prior to the first trial, respondents sought and received leave to amend their complaint to add IAM as a Rule 19 defendant, “insofar as the relief requested may involve or infringe upon the provisions of such Union’s collective bargaining agreement with the Company.” Order of the District Court, June 4, 1974 (App. 29). In United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948), this Court characterized the clearly-erroneous standard as follows: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” We note that the Court of Appeals quoted this passage at the conclusion of its analysis of the District Court opinion. Supra, at 283. See Jackson v. City of Killeen, 654 F. 2d 1181, 1184 (1981); Payne v. McLemore’s Wholesale & Retail Stores, 654 F. 2d 1130, 1147 (1981); Wilkins v. University of Houston, 654 F. 2d 388, 390 (1981); Lindsey v. Mississippi Research & Development Center, 652 F. 2d 488, 492 (1981); Rohde v. K. O. Steel Castings, Inc., 649 F. 2d 317, 320 (1981); Joshi v. Florida State University, 646 F. 2d 981, 986 (1981); Phillips v. Joint Legislative Committee, 637 F. 2d 1014, 1024 (1981); Danner v. United States Civil Service Comm’n, 635 F. 2d 427, 430-431 (1981); Thompson v. Leland Police Dept., 633 F. 2d 1111, 1112 (1980); Crawford v. Western Electric Co., 614 F. 2d 1300, 1311 (1980); Burdine v. Texas Dept. of Community Af fairs, 608 F. 2d 563, 566" }, { "docid": "22138164", "title": "", "text": "has been extended and held applicable to civil rights claims. E.g., No-land v. Cleland, 686 F.2d 806, 814 & n. 17 (9th Cir.1982) (sex-based discrimination); Sutton v. Atlantic Richfield Co., 646 F.2d 407, 411 n. 5 (9th Cir.1981) (age discrimination); Welch v. University of Texas & Its Marine Science Institute, 659 F.2d 531, 533 (5th Cir.1981) (sex discrimination); Muller v. United States Steel Corp., 509 F.2d 923, 929 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975) (ethnic discrimination). Similarly, we believe ERISA’s legislative history and section 510 clearly indicate that the doctrine of constructive discharge is applicable to cases where, as here, the employee resigns, engages in competitive employment, and as a result forfeits his pension benefits. In Noland v. Cleland, 686 F.2d 806, 813-14 (9th Cir.1982), we adopted the Fifth Circuit’s formulation of constructive discharge first enunciated in Young v. Southwestern Savings & Loan Association, 509 F.2d 140, 144 (5th Cir.1975) and later clarified in Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir.1980). Under this objective standard, “constructive discharge exists when ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ” Noland, 686 F.2d at 813, quoting Bourque at 65. See also Meyer v. Brown & Root Construction Co., 661 F.2d 369, 372 (5th Cir. 1981); Welch v. University of Texas, 659 F.2d 531, 533 (5th Cir.1981); Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977). Lojek argues that one of the changes that materially changed his con tract of employment, and forced him to resign, was the increase in the price of MTBB’s shares. He contends that prior to the new stock purchase agreement, the shares were valued at $2000 each, but increased in price six or seven times when the senior shareholders began to dispose of some of their shares. Lojek, however, testified that the first two shares he acquired had a fixed price of $3,500 each, that he paid $4,000 for the second share, and that he did not know" }, { "docid": "22659975", "title": "", "text": "court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” We note that the Court of Appeals quoted this passage at the conclusion of its analysis of the District Court opinion. Supra, at 283. See Jackson v. City of Killeen, 654 F. 2d 1181, 1184 (1981); Payne v. McLemore’s Wholesale & Retail Stores, 654 F. 2d 1130, 1147 (1981); Wilkins v. University of Houston, 654 F. 2d 388, 390 (1981); Lindsey v. Mississippi Research & Development Center, 652 F. 2d 488, 492 (1981); Rohde v. K. O. Steel Castings, Inc., 649 F. 2d 317, 320 (1981); Joshi v. Florida State University, 646 F. 2d 981, 986 (1981); Phillips v. Joint Legislative Committee, 637 F. 2d 1014, 1024 (1981); Danner v. United States Civil Service Comm’n, 635 F. 2d 427, 430-431 (1981); Thompson v. Leland Police Dept., 633 F. 2d 1111, 1112 (1980); Crawford v. Western Electric Co., 614 F. 2d 1300, 1311 (1980); Burdine v. Texas Dept. of Community Af fairs, 608 F. 2d 563, 566 (1979); Williams v. Tallahassee Motors, Inc., 607 F. 2d 689, 690 (1979); Parson v. Kaiser Aluminum & Chemical Corp., 575 F. 2d 1374, 1382 (1978); Causey v. Ford Motor Co., 516 F. 2d 416, 420-421 (1975); East v. Romine, Inc., 518 F. 2d 332, 338-339 (1975). There is some indication in the opinions of the Court of Appeals for the Fifth Circuit (see n. 15, supra) that the Circuit rule with respect to “ultimate facts” is only another way of stating a standard of review with respect to mixed questions of law and fact — the ultimate “fact” is the statutory, legally determinative consideration (here, intentional discrimination) which is or is not satisfied by subsidiary facts admitted or found by the trier of fact. As indicated in the text, however, the question of intentional discrimination under § 703(h) is a pure question of fact. Furthermore, the Court of Appeals’ opinion in this case appears to address the issue as a question of fact unmixed with legal considerations. At the same time, this Court has on" }, { "docid": "12809682", "title": "", "text": "taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a discriminatory criterion illegal under the Act.’ ” Furnco Construction Corp. v. Walters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977)). To rebut a prima facie case, the employer must clearly and specifically articulate, through admissible evidence, a “ ‘legitimate nondiscriminatory reason’ ” for its actions. Burdine, supra, 101 S.Ct. at 1093 (quoting McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824). The employer need not persuade the trier of fact that he was actually motivated by his asserted reason. His burden is satisfied by articulating a reason that raises a genuine issue of fact as to whether there was illegal discrimination. Jackson v. City of Killeen, 654 F.2d 1181, (5th Cir. 1981). If the employer does show such a reason, the burden of production shifts back to the plaintiff to prove that the asserted reason was merely a pretext to shield a discriminatory motive. In reviewing the district court’s judgment, we apply the Burdine standard to those facts found by the district court that are not clearly erroneous, keeping in mind that the ultimate finding on discrimination must be made independently by this Court. Jackson v. City of Killeen, supra; Danner v. United States Civil Service Commission, 635 F.2d 427, 430 (5th Cir. 1981). Sanchez proved his prima facie case. Sanchez’ testimony and his application establish that he met the minimum qualifications for the area coordinator position. The Commission required an applicant to possess a college degree from an accredited college, plus two years of community education or public relations work. In the alternative, each year of experience working with alcoholics could be substituted for each required year of college. Sanchez earned a college degree from the University of Texas at El Paso and his work with the Commission satisfied the experience requirement. Sanchez also proved that the Commission" }, { "docid": "235126", "title": "", "text": "charges. Section 704(a) of Title VII governs claims of retaliatory treatment and offers broad protection to those who seek to vindicate their civil rights through the Title VII machinery. Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969). Nonetheless, not every employee who is fired after having filed charges with the EEOC will fall within the protective ambit of section 704(a). In this case, we believe that the trial court correctly concluded DERM did not fire Dickerson in retaliation for filing his EEOC complaint. To establish a violation of section 704(a), the plaintiff must meet the requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981); Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1327-28 (5th Cir. 1980). First, the complainant in a Title VII action bears the initial burden of establishing a prima facie case of retaliatory conduct. McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824. The burden of production then shifts to the employer to articulate some legitimate nondiscriminatory reason for terminating the employee. Id. See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). Finally, the burden again shifts and the plaintiff must be afforded the opportunity to demonstrate that the alleged nondiscriminatory basis for firing was merely a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. at 804, 93 S.Ct. at 1825; Corley v. Jackson Police Department, 566 F.2d 994, 998 (5th Cir. 1978). The trial court concluded that Dickerson failed to meet his initial burden of establishing a prima facie case of retaliatory termination. To prove a prima facie case under section 704(a) the Title VII plaintiff must establish by a preponderance of the evidence (1) that he engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in protected activity and the adverse" }, { "docid": "23707033", "title": "", "text": "of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter.” To determine whether an employer has discriminated against its employee in violation of this provision, a court must assess the proof of discriminatory treatment claims using the three-stage procedure set forth by the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). See, e.g., Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1136 (5th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1630, 71 L.Ed.2d 866 (1982). First, the plaintiff has the burden of proving a prima facie case of discrimination based on opposition to an unlawful employment practice. See Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. The plaintiff meets this burden if he shows that (1) he has engaged in statutorily protected expression; (2) he has suffered an adverse employment action; and (3) there is a causal link between the protected expression and the adverse action. Payne, 654 F.2d at 1136. Second, if the plaintiff succeeds in proving the prima facie ease, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason” for the adverse employment action. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). The language of section 704(a) does not indicate what might constitute a legitimate and nondiscriminatory reason for disciplining an employee for engaging in statutorily protected expression. Courts, however, have held that certain forms of “opposition” conduct, including illegal acts or unreasonably hostile or aggressive conduct, may provide a legitimate, independent and nondiscriminatory basis for sanctions. Payne, 654 F.2d at 1142; see McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. at 1824 (illegal conduct); Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 233-34 (1st Cir.1976) (hostile, disruptive conduct). See also Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir.1978). Finally, if the defendant carries its" }, { "docid": "6216526", "title": "", "text": "reviewing court ... determine whether there are enough ‘subsidiary facts’ to undergird the ultimate fact.” Jefferies, 615 F.2d at 1031, n. 5 (citation omitted). If sufficient factual findings exist, the court must review the factual findings under the clearly erroneous standard in order to then be in a position to independently review the ultimate finding as to whether discrimination exists. If the factual findings are absent, the case must be remanded for such findings, Jefferies, 615 F.2d at 1031. Additionally, an independent review of the trial court’s decision must be undertaken if we determine that the findings were made “under an erroneous view of controlling legal principles.” Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374 (5th Cir. 1978), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979). In summary, assuming the trial court has applied correct controlling legal principles to its findings of fact, in a Title VII case, the reviewing court must (1) determine if there are sufficient findings of subsidiary facts upon which a review may be made; (2) review those findings of subsidiary facts under the Fed.R. of Civ.P. 52(a) “clearly erroneous” standard; and (3) independently determine whether those subsidiary facts which are not clearly erroneous support the finding of ultimate fact controlling the trial court’s decision. B. De Anda’s Title VII Claim Our review of De Anda’s claim of St. Joseph’s violation of Title VII, based on Slater’s alleged rataliation in the form of harassment and ultimate termination, is guided by the standards set forth by the United States Supreme Court in McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and clarified in Burdine v. Texas Department of Community Affairs, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Dickerson v. Metropolitan Dade County, 659 F.2d 574 (5th Cir. 1981); Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. 1981); Payne v. McLemore’s Wholesale and Retail Stores, 654 F.2d 1130 (5th Cir. 1981); Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325 (5th Cir. 1980). In demonstrating her contentions, De Anda had" }, { "docid": "6216527", "title": "", "text": "(2) review those findings of subsidiary facts under the Fed.R. of Civ.P. 52(a) “clearly erroneous” standard; and (3) independently determine whether those subsidiary facts which are not clearly erroneous support the finding of ultimate fact controlling the trial court’s decision. B. De Anda’s Title VII Claim Our review of De Anda’s claim of St. Joseph’s violation of Title VII, based on Slater’s alleged rataliation in the form of harassment and ultimate termination, is guided by the standards set forth by the United States Supreme Court in McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and clarified in Burdine v. Texas Department of Community Affairs, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Dickerson v. Metropolitan Dade County, 659 F.2d 574 (5th Cir. 1981); Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. 1981); Payne v. McLemore’s Wholesale and Retail Stores, 654 F.2d 1130 (5th Cir. 1981); Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325 (5th Cir. 1980). In demonstrating her contentions, De Anda had the initial burden of establishing a prima facie case of retaliatory conduct. The burden of production of evidence then shifted to St. Joseph to articulate some legitimate nondiscriminatory reason for the alleged retaliatory conduct. Finally, the burden again shifted to De Anda to demonstrate that the alleged nondiscriminatory basis for the action was merely a pretext for discrimination. Dickerson, 659 F.2d 574 at 580. In order to conduct this review, we must be presented with sufficient subsidiary facts to determine if they do, indeed, undergird the trial court’s final decision. Jefferies, 615 F.2d at 1031, n.5. Thus there must be sufficient findings of fact by the trial court in which the trial court reviewed the evidence introduced at trial in light of the unique requirements of a claim of retaliation. In such a case, the plaintiff must establish by a preponderance of the evidence (1) that he or she engaged in an activity protected by Title VII, (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation" }, { "docid": "23324371", "title": "", "text": "reason to doubt the good faith of the bank in the offer of a transfer. Walker, the top official over Russell, indicated quite clearly to Russell he wanted to try to enable her to overcome her difficulties and to resume her career as a valuable employee of the bank. There was nothing in his conduct in the final interview, as testified to by Russell, herself, which would indicate abruptness, indifference, or hostility. On the contrary, Walker’s attitude was, if we take his account (and Russell does not dispute it), friendly and conciliatory. He refused earlier to approve a recommendation to fire Russell and in selecting a department to assign her to on transfer, he chose the very one which Russell had earlier filed a complaint because she had not been transferred to it. We are unable to find any substantial evidence in the record to support a finding that the alternative offer of a transfer or termination was racially motivated or motivated by an intention to retaliate, or that the defendant’s action was pretextual. This is a case of an employee, whose work performance, under her own testimony, was unsatisfactory and the mere fact that she had filed an EEOC charge could not immu nize her from legitimate disciplining for unsatisfactory performance. Section 704(a) was never intended to be a shield for the admittedly delinquent employee. See Dickerson v. Metropolitan Dade County, 659 F.2d 574, 580-81 (5th Cir.1981); Hochstadt v. Worcester Foundation, Etc., 545 F.2d 222 (1st Cir.1976). To make out a case of retaliatory discharge, it was necessary under some of the decisions for Russell to show that “but for” her EEOC charge she would not have been discharged. Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir.1981) (“Plaintiff failed to show that the defendant’s reasons for her discharge were pretextual, i.e., that her race was a ‘but for’ cause or determining factor for her discharge”); Mack v. Cape Elizabeth School Bd., 553 F.2d 720, 722 (1st Cir.1977) (“... that but for them she would have been re-employed”); Staniewicz v. Beecham, Inc., 687 F.2d 526, 528 (1st" }, { "docid": "15964942", "title": "", "text": "the employee’s shoes would have felt compelled to resign.” Id. at 65, quoting Alicia Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977); see Meyer v. Brown & Root Construction Co., 661 F.2d 369, 372 (5th Cir. 1981); Welch v. University of Texas, 659 F.2d 531, 533 (5th Cir. 1981). In addition to setting forth such a reasonable man standard, the court in Bourque rejected arguments that an employee has to prove it was the employer’s intent to force the employee to resign. Bourque, 617 F.2d at 65. Nevertheless, the Bourque court stated that unlawful discrimination alone was insufficient for a constructive discharge finding. A single isolated instance of discrimination, such as unequal pay for equal work in Bourque, did not constitute an “aggravated situation” that would force a reasonable person to resign. Id. at 66. The court noted that continuing discrimination, see Calcote v. Texas Educational Foundation, 578 F.2d 95 (5th Cir. 1978), would provide such an aggravated situation. Finally, the court directed Title VII plaintiffs to remain on the job to mitigate damages from employment discrimination and resolve their complaints through existing employment relationships, unless such job presents “such an aggravated situation that a reasonable employee would be forced to resign.” Bourque, 617 F.2d at 66. The recent D. C. Circuit decision of Clark v. Marsh, 665 F.2d 1168 (D.C.Cir.1981), utilized this “aggravated situation” criteria and it provides helpful insight on the law of constructive discharge as it applies to Nolan’s circumstances. In Clark, a continuous pattern of discriminatory treatment over a period of years constituted a sufficient aggravated situation for a constructive discharge finding. The D. C. Circuit agreed with Bourque, supra, that the mere fact of discrimination without some aggravating factors, see Pittman v. Hattiesburg Municipal Separate School, 644 F.2d 1071 (5th Cir. 1981), could not sustain a constructive discharge. Historic discrimination over a number of years provided the necessary aggravating factor in Clark to justify a constructive discharge and this factor was also present in Nolan’s situation. Nolan’s VA career was punctuated with numerous adjudicated instances of discrimination which culminated in her departure" }, { "docid": "14666451", "title": "", "text": "oral agreement more favorable to her was reached in 1976, there was sufficient evidence before the district court to finS .to the contrary. V. Plaintiff Griffin contends that ISU’s refusal to renew her contract in 1980-81 and its decision not to rehire her in the Sociology Department for 1981-82 were both retaliatory actions. In this respect Title YII provides: It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchap-ter. 42 U.S.C. § 2000e-3(a). In a Title VII claim for retaliation, “the plaintiff must establish (1) statutorily protected expression, (2) an adverse employment action, and (3) a causal link between the protected expression and the adverse action.” Smalley v. City of Eatonville, 640 F.2d 765, 769 (5th Cir.1981); see Klein v. Trustees of Indiana University, 766 F.2d 275, 280 (7th Cir.1985). Once the plaintiff establishes her prima facie case, the burden shifts (as in the McDonnell-Douglas test) to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1141 (5th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1630, 71 L.Ed.2d 866 (1982). After the defendant has an opportunity to rebut the prima facie case, the plaintiff has a chance to show that the defendant’s reason is pretextual. See Payne, 654 F.2d at 1142; Plaintiff Griffiijj claims that the failure to. hire her in 1980-81 was a retaliatory response to her filing a claim with the EEOC. The district court, we think correctly, held that Griffin was not refused a contract for retaliatory reasons. Assuming Griffin established a prima facie case of retaliation, she failed to show that ISU’s proffered explanation was pretextual. The district court’s finding that the Sociology Department’s three-year rule was a" } ]

[ { "docid": "22347373", "title": "", "text": "these three recitals are both material and relevant to the issues raised by the pleadings, we reject appellants’ efforts to characterize them as genuine issues of fact. When confronted with the question of whether a party should be allowed to create his own issue of fact by an affidavit contradicting his prior deposition testimony, the Court of Appeals for the Second Circuit held that no genuine issue of fact was raised. Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). Therein the Court noted: “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” 410 F.2d at 578. The very object of summary judgment is to separate real and genuine issues from those that are formal or pretended, so that only the former may subject the moving party to the burden of trial. Suckow Borax Mines Consolidated, Inc. et al. v. Borax Consolidated, Limited et al., 185 F.2d 196, 205 (9th Cir. 1950). Here we are convinced that the issues of fact created by Radobenko are not issues which this Court could reasonably characterize as genuine; rather, they are sham issues which should not subject the defendants to the burden of a trial. Thus, we hold that the District Court, properly found that there was no genuine issue as to any material fact. IV Taking the facts to be as Radobenko first admitted them in his deposition testimony and all the inferences which may be drawn therefrom in the light most favorable to appellants, we further hold that the District Court properly found appellees entitled to judgment as a matter of law. Judgment affirmed. . The agreements between the parties consisted of three separate documents: a pre-incorporation agreement, a guaranty agreement and an employment contract. Pursuant to the pre-incorporation agreement, Kasper purchased 50,000 shares of AEC stock for $1.00 per share and Radobenko purchased 12,500 shares for the" } ]

[ { "docid": "11563640", "title": "", "text": "fact. Such allegations and denials thereof merely frame the ultimate issues to be determined by applying the relevant rules of law to establish fact. See Radobenko v. Automated Equipment Corporation, 520 F.2d 540, 543 (9th Cir.1975). The Radobenko court noted: When confronted with the question of whether a party should be allowed to create his own issue of fact by an affidavit contradicting his prior deposition testimony, the Court of Appeals for the Second Circuit held that no genuine issue of fact was raised. Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). Therein the Court noted: “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” 410 F.2d at 578. 520 F.2d at 544. A party cannot create an issue of fact simply by raising arguments contradicting his own prior statements and representations. See Id. See also Mosier v. Insurance Company of North America, 193 N.J.Super. 190, 195, 473 A.2d 86 (App.Div.1984). It is only genuine issues of fact and not simply issues created by self-contradictions of an opposing party that are intended to preclude resort to the device of summary judgment. Id. Here the court is satisfied that the issues of fact created by Azzari’s affidavit are not issues that this court could reasonably characterize as genuine, and should not subject the defendants to the burden of a trial. Thus, the court finds that there are no genuine issues as to any material fact. The record before this court clearly indicates that the defendants have materially and substantially breached the Option Agreement by refusing to execute and return the Real Estate Agreement to the debtors and by failing to convey the Option Property to the debtors. The record further clearly indicates that the Option Agreement is definite and certain as to the parties, subject matter, delivery and price terms, and is thereby capable of being specifically enforced.'" }, { "docid": "22070034", "title": "", "text": "prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research, supra, 410 F.2d at 578. The Perma Research rationale has been followed by other courts faced with a party’s attempt to inject a factual dispute through a contradictory affidavit. For example, in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir. 1975), the Ninth Circuit affirmed a grant of summary judgment in a breach of contract case where the only factual issues were raised in a party’s affidavit in contradiction of earli er statements in a deposition. The court acknowledged that the statements in the affidavit were material, but rejected the argument that they created a genuine issue within the meaning of Rule 56. “The very object of summary judgment is to separate real and genuine issues from those that are formal or pretended, so that only the former may subject the moving party to the burden of trial. Here we are convinced that the issues of fact created by Radobenko are not issues which this Court could reasonably characterize as genuine; rather, they are sham issues which should not subject the defendants to the burden of trial.” Radobenko, supra, 520 F.2d at 544 (citations omitted). See Price v. Worldvision Enterprises, Inc., 455 F.Supp. 252, 260 (S.D.N.Y. 1978) (affidavit testimony departs “so markedly from the prior deposition of defendants’ key witness, ... as to brand as bogus the factual issues sought to be raised”), aff’d, 603 F.2d 214 (2d Cir. 1979) . See generally Bryant v. Western Electric Co., 572 F.2d 1087 (5th Cir. 1978); Holifield v. Cities Service Tanker Corp., 421 F.Supp. 131, 136 (E.D.La.1976), aff’d 552 F.2d 367 (5th Cir. 1977). The gravamen of the Perma Research-Radobenko line of cases is the reviewing court’s determination that the issue raised by the contradictory affidavit constituted a sham. Certainly, every discrepancy contained in an affidavit does not justify a district court’s refusal to give credence to such evidence. See Choudhry v. Jenkins, 559 F.2d 1085, 1090 (7th Cir. 1977) (summary judgment was improper even though party’s" }, { "docid": "22070033", "title": "", "text": "it conflicts with earlier testimony in the party’s deposition. Despite this general rule, Kennett-Murray relies on the Second Circuit’s decision in Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969), for the proposition that a district court may grant summary judgment where an issue raised by affidavit is clearly inconsistent with earlier deposition testimony. In that case, plaintiff Perma Research alleged that defendant had fraudulently entered into a contract which it never intended to perform. The president of Perma Research was extensively deposed and disclosed no specifics of the fraud claim. In a subsequent affidavit, the president referred to a conversation in which a representative of defendant allegedly stated that defendant had no intention of performing on the contract. The Second Circuit concluded that the district court had properly granted summary judgment since the statement in the affidavit was blatantly inconsistent with the earlier deposition. “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research, supra, 410 F.2d at 578. The Perma Research rationale has been followed by other courts faced with a party’s attempt to inject a factual dispute through a contradictory affidavit. For example, in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir. 1975), the Ninth Circuit affirmed a grant of summary judgment in a breach of contract case where the only factual issues were raised in a party’s affidavit in contradiction of earli er statements in a deposition. The court acknowledged that the statements in the affidavit were material, but rejected the argument that they created a genuine issue within the meaning of Rule 56. “The very object of summary judgment is to separate real and genuine issues from those that are formal or pretended, so that only the former may subject the moving party to the burden of trial. Here we are convinced that the issues of fact created by Radobenko" }, { "docid": "22207718", "title": "", "text": "and Development Co. v. Singer Co., 410 F.2d 572 (2nd Cir.1969). As recounted by this court in Lane, the Second Circuit’s decision in Perma Research involved a plaintiff who claimed fraud but disclosed no specifics of the fraud claim during extensive depositions. He later filed an affidavit which disclosed the specifics and thus was blatantly inconsistent with his earlier affidavit. “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research at 578. The Second Circuit determined that any issue raised by affidavit which was flatly contradicted by an earlier deposition was so suspect of untruthfulness as to be disregarded as a matter of law. The Eleventh Circuit accepted the proposition that an affidavit can be disregarded when it constitutes a sham in Van T. Junkins and Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). In that case the President of Van T. Junkins “made crystal clear in three places in the deposition” that there was no condition attached to their agreement that he was required to purchase one of their buildings in order to be awarded a dealership. Id. 657. He later submitted an affidavit stating that he would be awarded the dealership only if he would purchase one of their buildings. This court held that the affidavit should be disregarded as a sham. Its flat contradiction to the earlier deposition was unexplained and therefore was inadequate to raise a genuine issue of fact which was denied to exist by the earlier deposition. Discrepancies: Credibility or Sham A definite distinction must be made between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence. “An opposing party’s affidavit should be considered although it differs from or varies [from] his evidence as given by deposition or another affidavit and the two in conjunction may disclose an issue of credibility.” 6 Moore’s" }, { "docid": "11563639", "title": "", "text": "two and three. What is your understanding of those paragraphs? “A. The master option described above will be treated as it may be exercised as a group of individual options as — an option per each lot and one option for the initial conveyance. “What do you want me to answer? What is the question? Would I understand it? “Q. Do you understand it? “A. Yes, I understand it. “Q. How about the following paragraph, three. “A. Three? “Q. Yes. “A. Yeah. I understand that. “Q. So, in your opinion, make Glassboro Housing Associates exercise its option piecemeal in any owner or in any manner as Glassboro Housing Associates wishes as long as they do it prior to the expiration date? “A. As of October 29, 1983. Whatever the circumstances were at that time. Yes.” (Deposition of November 10, 1988, pp. 22-29). Mere allegations, and denials, that a contract was breached, that a fraud was committed, or that some fiduciary duty was breached do not alone establish the existence of a genuine dispute of material fact. Such allegations and denials thereof merely frame the ultimate issues to be determined by applying the relevant rules of law to establish fact. See Radobenko v. Automated Equipment Corporation, 520 F.2d 540, 543 (9th Cir.1975). The Radobenko court noted: When confronted with the question of whether a party should be allowed to create his own issue of fact by an affidavit contradicting his prior deposition testimony, the Court of Appeals for the Second Circuit held that no genuine issue of fact was raised. Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). Therein the Court noted: “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” 410 F.2d at 578. 520 F.2d at 544. A party cannot create an issue of fact simply by raising arguments contradicting his own prior statements and representations." }, { "docid": "22204882", "title": "", "text": "Both affidavits were filed by Camfield expressly for the purpose of opposing summary judgment, a year after he gave his deposition testimony. Neither Camfield’s affidavit nor that of his secretary raises the possibility that confusion or mistake such as that present in Kennett-Murray caused the discrepancy with Camfield’s deposition. Since the narrow exception recognized by the Kennett-Murray court is inapplicable here, we follow the rationale of the Radobenko and Perma Research courts. The very purpose of summary judgment under Rule 56 is to prevent “the assertion of unfounded claims or the interposition of specious denials or sham defenses.... ” 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2712 (1983). If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own earlier testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. Perma Research, supra, 410 F.2d at 578, quoted in Radobenko, supra, 520 F.2d at 544. No circumstances such as those in Kennett-Murray — e.g., confusion or mistake — explain why Camfield and his secretary directly contradicted his own deposition. The district court, in stating that the assertions in the affidavit were “not only implausible but also contrary to Camfield’s sworn testimony in his deposition,” reached a conclusion as to the existence of a genuine issue of fact. We do not read this conclusion as a credibility determination but rather as a recognition of a sham issue similar to those that the Perma Research and Radobenko courts held should not require trial. Since Camfield’s affidavit created a sham issue of fact instead of a genuine one, we conclude that the district court did not err in granting Michelin summary judgment. We emphasize that the strong remedy of summary judgment is to be reserved for those cases in which there is no genuine material issue of fact for determination. It is a procedure that is of great value in eliminating the sham and frivolous case. If testimony under oath, however, can be" }, { "docid": "22370448", "title": "", "text": "testimony. Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969) (examining omission in four-day deposition); Martin v. City of New York, 627 F.Supp. 892, 896 (E.D.N.Y.1985) (examining direct contradiction between deposition and affidavit). “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma, 410 F.2d at 578. Thus, factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not “genuine” issues for trial. Id. Guided by these cardinal principles, we conclude that the district court erred in disregarding portions of Hayes’ second deposition. In short, the circumstances in this ease do not justify the court’s refusal to consider portions of the second deposition. First, the conflict in this case does not arise out of an affidavit crafted for the specific purpose of defeating a motion for summary judgment. It does not arise out of an affidavit at all. . In Perma, we concluded that statements in an affidavit filed in response to a summary judgment motion could not create material factual disputes where none existed without such affidavit. We recognized that a deposition of a witness, subject to cross-examination, is generally more reliable than an affidavit submitted to oppose a summary judgment motion. 410 F.2d at 578. In this case, however, the conflict arises from a deposition taken long before the defendants filed their motion for summary judgment. Second, the circumstances surrounding the deposition testimony in this case are significantly different from the circumstances sur rounding the affidavit in Perma. In this case, Hayes was not represented by counsel at the first deposition. He had conducted only limited discovery pro se by the time of the first deposition. Moreover, as is apparent from the transcript, the first deposition was very brief. By the time of the second deposition, appellant had retained pro bono counsel and counsel had conducted significant discovery. Additionally, the second" }, { "docid": "12403388", "title": "", "text": "disregard” Gaglione’s second statement “because it contradicts his prior deposition testimony.” Id. We conclude that this was error. The “sham issue of fact” doctrine “prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony.” In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir.2013) (per curiam) (emphasis supplied). See also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001) (“[Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiffs affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony.”); Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (“[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.”). The purpose of the doctrine is clear: “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). Thus, factual issues that a party creates by filing an affidavit crafted to oppose a summary judgment motion that contradicts that party’s prior testimony are not “genuine” issues for trial. Id. Here, however, Gaglione was not a party to the action, nor did he have a familial or other close relationship with the plaintiff that suggests Moll could influence Gaglione’s testimony. Moreover, there is nothing in the record to suggest that Ga-glione submitted the declaration solely to create a genuine issue of fact. Therefore the district court was not required to disregard Gaglione’s second sworn statement. In certain circumstance we have held that sham issue of fact doctrine applies to third-party witnesses, particularly expert witnesses. See Fosamax, 707 F.3d at 193 (holding that the sham affidavit doctrine" }, { "docid": "22087644", "title": "", "text": "testimony. See Foster v. Arcata Associates, 772 F.2d 1453, 1462 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986); Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543-44 (9th Cir.1975). “[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Foster, 772 F.2d at 1462; Radobenko, 520 F.2d at 544 (quoting Perma Research and Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). Other circuits, however, have urged caution in applying this rule. In Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980), the Fifth Circuit stated: The gravamen of the Perma Research-Radobenko line of cases is the reviewing court’s determination that the issue raised by the contradictory affidavit constituted a sham. Certainly, every discrepancy contained in an affidavit does not justify a district court’s refusal to give credence to such evidence.... In light of the jury’s role in resolving questions of credibility, a district court should not reject the content of an affidavit even if it is at odds with statements made in an earlier deposition. Id. at 894. In Camfield Tires v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir.1983), the Eighth Circuit found that the Fifth Circuit’s decision in Bone and the Ninth Circuit’s decision in Radobenko did not conflict, but reflected different facts. In Radobenko, the district court believed that the affidavit was a sham produced merely to avoid summary judgment. In Bone, however, the affidavit was an attempt to explain certain aspects of the confused deposition testimony and therefore was not really inconsistent. Camfield, 719 F.2d at 1365. These thoughts have been echoed by the Seventh and Tenth Circuits. In Miller v. A.H. Robins Co., 766 F.2d 1102, 1104 (7th Cir.1985), the court held that “[a]n inconsistent affidavit may preclude summary judgment ... if the affiant was confused at the deposition and the affidavit explains those aspects of the deposition testimony" }, { "docid": "9998687", "title": "", "text": "of proof rule that governs customs forfeitures. See 18 U.S.C. § 981(d); 21 U.S.C. § 881(d); 19 U.S.C. § 1615. The Second Circuit, in analyzing this shared rule, has noted that “[n]o doubt uncertainty caused by the fungibility of money will make it difficult and in many cases impossible for claimants to satisfy this burden. But it is precisely the function of burden of proof rules to determine which party loses where evidence is lacking or at best ambiguous.” Banco Cafetero, 797 F.2d at 1161. Matos has tried to avoid summary judgment by stating that his guilty plea to the money laundering violations was coerced and that he in fact never attempted to disguise the source of the illegitimate funds. (Matos Response to Pl.R. 3(g) Stmt. ¶¶ 3-4.) Matos hopes that by contradicting his prior sworn statements, he can undermine the government’s demonstration of probable cause and create a genuine issue of material fact for trial. However, [i]t is well settled in this circuit that a party’s affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment____ As we stated in Perma Research: “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Mack v. United States, 814 F.2d 120, 124-25 (2d Cir.1987) (quoting Perma Research and Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)); see also Trans-Orient Marine v. Star Trading & Marine, 925 F.2d 566, 572 (2d Cir.1991) (“The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony.”) Thus, Matos cannot avoid summary judgment by simply renouncing his prior sworn statements to create a material issue of fact based on his own credibility. Matos has also attempted to defeat summary judgment by raising an issue of" }, { "docid": "3285583", "title": "", "text": "242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A1 justifiable inferences must be drawn in Nelson’s favor, and we must deny summary judgment if any rational trier of fact could resolve an issue in his favor. Id. II “The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Kennedy, 952 F.2d at 266. Stemming from our decision in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir.1975), this rule bars a plaintiff from creating a factual dispute with himself for the sole purpose of arguing that summary judg ment is inappropriate until the dispute is settled. “ ‘[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’ ” Id. at 544 (quoting Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). However, this rule has its limits. In Kennedy, we noted that other circuits had “urged caution in applying the rule” and concluded “that the Foster-Radobenko rule does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier testimony.” Id. at 266-67. Accordingly, Kennedy required that “before applying the Radobenko sanction, the district court must make a factual determination that the contradiction was actually a ‘sham.’ ” Id. at 267. In addition, as we have noted in subsequent cases, the “sham affidavit” rule does not preclude the non-moving party “ ‘from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition’ ” and that “ ‘minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.’ ” Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078, 1086 n. 7 (9th Cir.2002) (quoting Messick v. Horizon Indus. Inc., 62 F.3d 1227, 1231 (9th Cir.1995)); see also Sea-Land Serv., Inc. v. Lozen Int’l," }, { "docid": "18788669", "title": "", "text": "grant of summary judgment. Lane submitted the affidavit of a co-worker, Wilmer Ring, dated December 16, 1983. In this affidavit, Ring “an insulator/pipefitter,” recalled using Keene’s product Monoblock at the ITT Rayonier plant in Jesup, Georgia “in approximately 1969” while “working with and in close proximity to [Lane].” Even in light of Ring’s affidavit, Keene argued that summary judgment was appropriate. Keene maintained that Ring’s affi davit “must be disregarded” because it is “in direct and utter conflict” with Ring’s earlier deposition testimony. Apparently, the district court agreed and granted Keene’s motion for summary judgment. B. In support of the district court’s decision, Keene cites Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir.1969), for the proposition that a district court may grant summary judgment if an issue raised by affidavit is clearly inconsistent with earlier deposition testimony. In that case, the plaintiff Perma Research alleged that the defendant had fraudulently entered into a contract which it never intended to perform. The president of Per-ma Research was extensively deposed and disclosed no specifics of the fraud claim. In a subsequent affidavit, the president referred to a conversation in which a representative of the defendant allegedly stated that the defendant “never had any intention of performing the ... contract.” Id. at 577 (emphasis deleted). The Second Circuit concluded that the district court had properly granted summary judgment since the statement in the affidavit was blatantly inconsistent with the earlier deposition. “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Id. at 578 (citations omitted). The Second Circuit’s rationale has been followed by other courts faced with a party’s attempt to create a factual dispute through a contradictory affidavit. For example, in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir.1975), the Ninth Circuit affirmed a grant of summary judgment where an issue of fact existed “only because of the" }, { "docid": "23268726", "title": "", "text": "be submitted to a jury.”); Sligh v. Doe, 596 F.2d 1169, 1171 (4th Cir.1979) (citizenship presents a “preliminary question of fact to be determined by the trial court”). Plaintiffs also contend, relying on Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir.1991) (“Trans-Orient Marine ”), that the district court was not entitled to consider Corio’s hearing testimony as to his intent to remain domiciled in New York — i.e., that he had intended his stay in Pennsylvania to be only temporary — because Corio had testified at deposition that he moved to Pennsylvania because he “just wanted to live there.” We reject that contention as well. In Trans-Orient Marine, we discussed the principle, adopted in Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969) (“Perma Research”), that, in opposing summary judgment, a party who has testified to a given fact in his deposition cannot create a triable issue merely by submitting his affidavit denying the fact. See Trans-Orient Marine, 925 F.2d at 572. The Per-ma Research principle addresses the concern that “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research, 410 F.2d at 578. Thus, in affirming the granting of summary judgment notwithstanding an affidavit from Perma Research’s president Perrino, we noted that summary judgment was not foreclosed where the supposed factual dispute existed “only because of inconsistent statements made by Perrino the deponent and Perrino the affiant.” Id.; see also Hayes v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir.1996) (“factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues for trial” (quoting Perma Research, 410 F.2d at 578)). The Perma Research principle, however, which is pertinent not only to summary judgment on the merits of a claim or defense but also to the resolution of preliminary" }, { "docid": "22204878", "title": "", "text": "giving a deposition would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. The Fifth Circuit reached a contrary result in Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir.1980). After carefully examining Rule 56 and cases decided under it, the court there concluded that a genuine issue can be raised by a party’s affidavit even if it conflicts with the party’s earlier deposition testimony. Despite reaching a different conclusion, the Kennett-Murray court did not disagree with the central concern of the Radobenko and Perma Research courts that parties not thwart the purpose of Rule 56 by generating issues of fact through affidavits that contradict their own depositions. It described certain narrow circumstances under which a party’s contradictory affidavit can raise a legitimate factual issue: [T]he alleged inconsistency created by the affidavit existed within the deposition itself. Accordingly, the issue .. . was appropriately raised by the deposition even without consideration of the affidavit. Even assuming that the deposition was unequivocal, Bone's affidavit served to create a genuine issue which would preclude summary judgment. Bone’s affidavit did not purport to raise a new matter, but rather to explain certain aspects of his deposition testimony. Bone stated that he was confused during the deposition .... Bone's assertion is at least plausible. A fair reading of the deposition reveals frequent shifts in the questioning ... with a degree of confusion on the parts of both Bone and the attorney. The affidavit is not inherently inconsistent with Bone’s earlier testimony.... Furthermore, the statement in the affidavit is not at odds with Bone’s general theory of defense presented in the deposition. 622 F.2d at 894-95. Because the limited facts in Kennett-Murray suggested that the party did not file an inconsistent affidavit for the purpose of circumventing Rule 56, the court did not find it necessary to decide whether the principles of Radobenko and Perma Research should be adopted. Absent narrow circumstances such as those in Kennett-Murray, courts confronting the issue we face here have followed the Radobenko and Perma Research cases. In Office Supply Co." }, { "docid": "18788670", "title": "", "text": "no specifics of the fraud claim. In a subsequent affidavit, the president referred to a conversation in which a representative of the defendant allegedly stated that the defendant “never had any intention of performing the ... contract.” Id. at 577 (emphasis deleted). The Second Circuit concluded that the district court had properly granted summary judgment since the statement in the affidavit was blatantly inconsistent with the earlier deposition. “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Id. at 578 (citations omitted). The Second Circuit’s rationale has been followed by other courts faced with a party’s attempt to create a factual dispute through a contradictory affidavit. For example, in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir.1975), the Ninth Circuit affirmed a grant of summary judgment where an issue of fact existed “only because of the inconsistent statements made by Radobenko the deponent and Radobenko the affiant.” Id. at 543. The court recognized that “[t]he very object of summary judgment is to separate real and genuine issues from those that are formal or pretended,” id. at 544 (citation omitted), and concluded “that the issues of fact created by Radobenko are not issues which this Court could reasonably characterize as genuine; rather, they are sham issues which should not subject the defendants to the burden of a trial.” Id. The Eleventh Circuit authority is Van T. Junkins & Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). In that case, this court affirmed a grant of summary judgment, holding that a district court may properly find that a party’s contradictory affidavit is a sham. “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 657. See also Camfield Tires," }, { "docid": "23268727", "title": "", "text": "Per-ma Research principle addresses the concern that “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research, 410 F.2d at 578. Thus, in affirming the granting of summary judgment notwithstanding an affidavit from Perma Research’s president Perrino, we noted that summary judgment was not foreclosed where the supposed factual dispute existed “only because of inconsistent statements made by Perrino the deponent and Perrino the affiant.” Id.; see also Hayes v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir.1996) (“factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues for trial” (quoting Perma Research, 410 F.2d at 578)). The Perma Research principle, however, which is pertinent not only to summary judgment on the merits of a claim or defense but also to the resolution of preliminary questions of jurisdiction, is limited in two respects that are material to the present ease. First, the principle does not apply if the deposition and the later sworn statement are not actually contradictory. See, e.g., White v. ARCO Engineering, Corp., 221 F.3d 293, 304 (2d Cir.2000). Thus, it does not apply where the later sworn assertion addresses an issue that was not, or was not thoroughly or clearly, explored in the deposition, see, e.g., Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996); in determining whether an evidentiary hearing is necessary, the district court “should not disregard the [post-deposition] testimony because of an earlier account that was ambiguous, confusing, or simply incomplete,” Longman, 160 F.3d at 112. An issue of fact warranting an evidentiary hearing “may be revealed by [a party’s] subsequent sworn testimony that amplifies or explains, but does not merely contradict, his prior testimony.” Rule v. Brine, Inc., 85 F.3d at 1011; see Thomas v. Roach, 165 F.3d 137, 144 (2d Cir.1999) (summary dismissal disregarding a party’s relevant post-deposition proffer on an" }, { "docid": "18788671", "title": "", "text": "inconsistent statements made by Radobenko the deponent and Radobenko the affiant.” Id. at 543. The court recognized that “[t]he very object of summary judgment is to separate real and genuine issues from those that are formal or pretended,” id. at 544 (citation omitted), and concluded “that the issues of fact created by Radobenko are not issues which this Court could reasonably characterize as genuine; rather, they are sham issues which should not subject the defendants to the burden of a trial.” Id. The Eleventh Circuit authority is Van T. Junkins & Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). In that case, this court affirmed a grant of summary judgment, holding that a district court may properly find that a party’s contradictory affidavit is a sham. “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 657. See also Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983) (“only ... where the conflicts between the deposition and affidavit raise only sham issues should summary judgment be granted”); Price v. Worldvision Enterprises, 455 F.Supp. 252, 260 (S.D.N.Y.1978) (affidavit testimony departed “so markedly from the prior deposition ... as to brand as bogus the factual issues sought to be raised”), aff'd mem., 603 F.2d 214 (2d Cir.1979). The crux of these cases rests with the reviewing court’s determination that an issue raised by an affidavit is a sham because it contradicts or conflicts with earlier deposition testimony. In Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980), however, the Fifth Circuit cautioned of the dangers inherent in this approach. Certainly, every discrepancy contained in an affidavit does not justify a district court’s refusal to give credence to such evidence. In light of the jury’s role in resolving questions of credibility, a district court should not reject the content of an affidavit even if it is at odds with statements made in an earlier deposition." }, { "docid": "22204877", "title": "", "text": "451 (8th Cir.1979). All evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); Jackson v. Star Sprinkler Corp. of Fla., 575 F.2d 1223, 1226 (8th Cir.1978). We must decide whether the conflict between Pete Camfield’s affidavit and his earlier deposition testimony creates a genuine issue as to any material fact, thus precluding the entry of summary judgment for defendant under Rule 56. The circuits have reached differing results concerning the propriety of summary judgment in such circumstances. In Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir. 1975), the Ninth Circuit concluded that an issue of fact that arose from a conflict between a party’s deposition and later affidavit was not a genuine issue but a sham. The court relied upon Perma Research & Development Co. v. The Singer Co., 410 F.2d 572, 578 (2d Cir.1969), in which the Second Circuit reasoned that allowing a party to submit a contradictory affidavit after giving a deposition would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. The Fifth Circuit reached a contrary result in Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir.1980). After carefully examining Rule 56 and cases decided under it, the court there concluded that a genuine issue can be raised by a party’s affidavit even if it conflicts with the party’s earlier deposition testimony. Despite reaching a different conclusion, the Kennett-Murray court did not disagree with the central concern of the Radobenko and Perma Research courts that parties not thwart the purpose of Rule 56 by generating issues of fact through affidavits that contradict their own depositions. It described certain narrow circumstances under which a party’s contradictory affidavit can raise a legitimate factual issue: [T]he alleged inconsistency created by the affidavit existed within the deposition itself. Accordingly, the issue .. . was appropriately raised by the deposition even without consideration of the affidavit. Even assuming that the deposition was unequivocal, Bone's affidavit served to create" }, { "docid": "11314630", "title": "", "text": "U.S. 55, 67-68, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998); see 11 James Wm. Moore, Moore’s Federal Practice § 56.14[1][f|, at 56-179 (3d ed. 2004) (“If a party’s deposition and affidavit are in conflict, the affidavit is to be disregarded unless a legitimate reason can be given for the discrepancies.”). As the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated in Sins-key, Where, as here, a party has been examined extensively at deposition and then seeks to create an issue of fact through a later, inconsistent declaration, he has the duty to provide a satisfactory explanation for the discrepancy at the time the declaration is filed. To allow him to preclude summary judgment simply by contradicting his own prior statements would seriously impair the utility of Federal Rule of Civil Procedure 56. The trial court properly disregarded the declaration in assessing the existence of a genuine issue of fact. Sinskey, 982 F.2d at 498. “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). “Courts generally give a deposition more weight because there was an opportunity for cross-examination absent in an affidavit.” 11 James Wm. Moore, Moore’s Federal Practice § 56.14[1][f], at 56-179 (3d ed.2004). Mr. MeConnaughhay’s January 26, 2009 Affidavit was taken the same day plaintiff filed plaintiffs Reply and directly refutes defendant’s argument that plaintiffs Drawings should be disregarded by the court. See Jan. 2009 McConnaughhay Aff. ¶¶ 9-12; Def.’s Resp. 4-5. The Affidavit never addresses, however, why such information was missing from Mr. McConnaughhay’s October 28, 2008 Deposition. See Jan. 2009 McCon-naughhay Aff. passim. A conflict between a deposition and an affidavit “may consist of a direct contradiction of factual statements, or may arise because an affiant, who professed a lack of knowledge at deposition, is able to provide detailed information in an" }, { "docid": "729796", "title": "", "text": "preponderance of evidence which leaves the issue in doubt.” Maxwell Land-Grant Case, 121 U.S. 325, 381, 7 S.Ct. 1015, 1028, 30 L.Ed. 949 (1887), quoted in Federenko, supra 101 S.Ct. at 747. In this light, defendant’s mere failure to present factual support for his naked denial may be insufficient grounds for granting the Government’s motion. Yet there is more. Defendant’s own deposition testimony clearly and unequivocally controverts his present position. Defendant testified that one of his duties on the Ukrainian police force was to bring Jews not wearing the identifying armband to the police station and to report to the commandant and the Gestapo. Dercacz Dep. at 98. He further testified that his duty was to report civilians known to have sold food to the the ghettoized Jews. Id. at 100. This testimony leaves no doubt that defendant, by virtue of his admitted duties, assisted the Nazis in persecuting civilian Jews. However, the question remains whether defendant’s subsequent affidavit raises triable issues. In summary judgment proceedings, where an affidavit conflicts with former testimonial evidence, the question is whether the affidavit raises genuine issues of fact. Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). Triable issues of fact cannot be created merely by sworn statements, conflicting with previous testimony, submitted for the purpose of opposing summary judgment. “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly dimmish the utility of summary judgment as a procedure for screening out sham issues of fact.” Id. Here the Court is convinced that defendant’s affidavit fails to raise a genuine triable issue. Rather, it raises “sham issues which should not subject the [Government] to • the burden of a trial.” Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (9th Cir. 1975). Defendant failed to submit any supporting facts which suggest that the former testimony should be discredited; therefore, the Court credits defendant’s prior unambiguous admissions. These admissions provide clear and convincing evidence of defendant’s invidious duties" } ]

[ { "docid": "23616393", "title": "", "text": "S.Ct. 1507, 1510, 18 L.Ed.2d 681 (1967) (citing 5 U.S.C. § 701(a)); see Barlow v. Collins, 397 U.S. 159, 166-67, 90 S.Ct. 832, 837-38, 25 L.Ed.2d 192 (1970); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 156-57, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970). Where review is precluded by statute or where Congress has “committed the challenged action entirely to administrative discretion, judicial review may not be available.” Barlow v. Collins, 397 U.S. at 165, 87 S.Ct. at 836; Morris v. Gressette, 432 U.S. 491, 500-01, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977). Whether judicial review may be available in any particular instance requires more than a mechanical application of this general rule. Although courts must respect congressional intent that certain aspects of agency decisionmaking be left wholly to administrative discretion, see Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964), the exception to judicial review is a narrow one. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). Inquiry properly runs to the question for which review is sought and to congressional intent with regard to judicial review as it relates to that question. Ness Investment Corp. v. United States Department of Agriculture, 512 F.2d 706, 714 (9th Cir. 1975); cf. Johnson v. Robison, 415 U.S. 361, 366-74, 94 S.Ct. 1160, 1165-69, 39 L.Ed.2d 389 (1974) (statute declaring that the decisions of the Administrator of the Veterans’ Administration were not reviewable by any other official or any court not intended by Congress to preclude judicial consideration of constitutional challenges to veterans’ benefits legislation). In general, even where action is committed to absolute agency discretion by law, courts have assumed the power to review allegations that an agency exceeded its legal authority, acted unconstitutionally, or failed to follow its own regulations. Ness Investment Corp. v. United States Department of Agriculture, 512 F.2d at 714; Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 874 (D.C.Cir.1970). As the District of Columbia Circuit has observed, “[w]hen the bounds of discretion give way to the stricter boundaries" } ]

[ { "docid": "16541728", "title": "", "text": "misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a) (1994). The district court held that Ford lacks prudential Lanham Act standing under this section. See Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560-62 (5th Cir.) (outlining test for determining prudential Lanham Act standing), cert. denied, — U.S. -, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001). Although Article III constitutional stand ing was not raised by the parties or considered by the district court, we must— where necessary — raise it sua sponte. SEC v. Forex Asset Mgmt., LLC, 242 F.3d 325, 328 (5th Cir.2001). Standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). [The irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest 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 ... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.] Id. at 560-61, 112 S.Ct. 2130 (quotations omitted). “The party invoking federal jurisdiction” — Ford—bears the burden of proof in establishing all three elements. Id. at 561, 112 S.Ct. 2130. “Failure to establish any one [of them] deprives the federal courts of jurisdiction to hear the suit.” Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 319 (5th Cir.2002). At the summary judgment stage, “the plaintiff can no longer rest on ... mere allegations, but must set forth by affidavit or other evidence specific facts” validating his right to standing. Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citations omitted). The question of Article III" }, { "docid": "18320264", "title": "", "text": "history of the APA, referred to in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), indicates that the committed to agency discretion exception to judicial review is intended to be “applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ S.Rep.No.752, 79th Cong. 1st Sess. 26 (1945).” Id. at 410, 91 S.Ct. at 820. (Emphasis added). In construing 5 U.S.C. § 701(a) the Supreme Court has stressed the “basic presumption of review.” Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). The burden of proving nonreviewability is on the agency involved. See Id. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); “[JJudicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” See Morris v. Gressets, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971); Tooahnippah v. Hickel, 397 U.S. 598, 606, 90 S.Ct. 1316, 1321, 25 L.Ed.2d 600 (1970); Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 155-57, 90 S.Ct. 827, 830-31, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970). The reviewing court must determine “whether Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion.” Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977); Barlow v. Collins, 397 U.S. 159, 165, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970). As no provision of the Immigration and Naturalization Act expressly precludes judicial review of the Attorney General’s actions under § 212(d)(5), it is necessary to determine “whether unreviewability" }, { "docid": "18320265", "title": "", "text": "97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971); Tooahnippah v. Hickel, 397 U.S. 598, 606, 90 S.Ct. 1316, 1321, 25 L.Ed.2d 600 (1970); Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 155-57, 90 S.Ct. 827, 830-31, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970). The reviewing court must determine “whether Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion.” Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977); Barlow v. Collins, 397 U.S. 159, 165, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970). As no provision of the Immigration and Naturalization Act expressly precludes judicial review of the Attorney General’s actions under § 212(d)(5), it is necessary to determine “whether unreviewability can fairly be inferred.” 397 U.S. at 166. See Association of Data Processing Service Organization v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970); Switchmen v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943); Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977). That inquiry requires an evaluation of the legislative scheme as well as the practical and policy implications of judicial review. Bullard v. Webster, 623 F.2d 1042, 1046 (5th Cir. 1980), cert. denied 451 U.S. 907, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); Local 2855 v. United States, 602 F.2d 574, 575 (3rd Cir. 1969). There must be a weighing of the need for, and feasibility of, judicial review versus the potential for disruption of the administrative process. Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969). Criteria suggested by the Third Circuit in Local 2855 for making such a determination include (1) the broad discretion given an agency in a particular area of operation, (2) the" }, { "docid": "60353", "title": "", "text": "jurisdiction conferred by statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998). A Rule 12(b)(1) motion can mount either a facial or factual challenge. See, e.g., Hunter v. Branch Banking & Tr. Co., 2013 WL 607151, at *2 (N.D. Tex. Feb. 19, 2013) (Fitzwater, C. J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981)). When a party makes a Rule 12(b)(1) motion without including evidence, the challenge to subject matter jurisdiction is facial. Id. The court assesses a facial challenge as it does a Rule 12(b)(6) motion in that it “looks only at the sufficiency of the allegations in the pleading and assumes them to be true. If the allegations are sufficient to allege jurisdiction, the court must deny the motion.” Id. (citation omitted) (citing Paterson, 644 F.2d at 523). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citations omitted). B The standing doctrine addresses the question of who may properly bring suit in federal court, and “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). It “involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To establish standing, a plaintiff must meet both constitutional and prudential requirements. See, e.g., Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001). Dallas County contends that plaintiffs lack constitutional standing, which requires that a litigant establish three elements: (1) an injury-in-fact that is concrete and actual or imminent, not hypothetical; (2) a fairly traceable causal link between the injury and the defendants’ actions; and (3) that the injury will likely be redressed by a favorable decision. See, e.g., Bennett" }, { "docid": "15879835", "title": "", "text": "117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)). Plaintiffs meet the constitutional, or Article III, standing requirements. Because of the flow control ordinances, plaintiffs will not be able to ship the garbage they collect within the Region to the landfills of their choice and, as a result, will be forced to pay a “tipping” fee at the Authority’s landfill. Testimony at trial indicates that plaintiffs’ cost to dispose of waste at the Authority’s landfill, including the tipping fee and the transportation cost, would be higher than their current cost. Thus, plaintiffs have an injury (higher operating costs) that is traceable to the ordinances enacted by defendants and which would be remedied if we rule that the ordinances are unconstitutional. 2. Prudential Standing The more difficult question is whether plaintiffs meet the prudential standing requirements. The goal of the prudential standing requirements is to “determine whether the plaintiff ‘is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.’ ” Procter & Gamble, 242 F.3d at 560 (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 106 S.Ct. 1326, 1334 n. 8, 89 L.Ed.2d 501 (1986)). “These judicially created limits concern whether a plaintiffs grievance arguably falls within the zone of interests protected by the statutory provision invoked in the suit, whether the complaint raises abstract questions or a generalized grievance more properly addressed by the legislative branch, and whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of third parties.” Procter & Gamble, 242 F.3d at 560. The key inquiry for prudential standing in this case is whether the injury of which plaintiffs complain is “arguably within the zone of interests to be protected” by the dormant Commerce Clause, the “constitutional guarantee in question” here. Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). See also Boston Stock Exch. v. State Tax Comm’n," }, { "docid": "205189", "title": "", "text": "that it would not increase payment unless it was given- evidence that the patient was held financially responsible for her portion of the total charge reported by North Cypress. . Mem. and Order of August 10, 2012, 14. . Mem. and Order of March 2, 2011, 29-33. . Mem. and Order of November 3, 2011, 21. . Mem. and Order of June 25, 2012, 18-19. . Mem. and Order of July 25, 2012, 17. . Mem. and Order of August 10, 2012, 20. . Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 319 (5th Cir.2002). . Id. . Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir.2001). . Id. (quoting Fed.R.Civ.P. 56(c)). . R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005). . Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (citing Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.2004)). . Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). . See Nat’l Fed’n of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 209 (5th Cir.2011). . Cole v. General Motors Corp., 484 F.3d 717, 723 (5th Cir.2007) (quoting Parker v. District of Columbia, 478 F.3d 370, 377 (D.C.Cir.2007)). . See 29 U.S.C. § 1132(a)(1)(B). . Harris Methodist Fort Worth v. Sales Support Servs., 426 F.3d 330, 333-34 (5th Cir.2005) (citing Tango Transport v. Healthcare Fin. Servs. LLC, 322 F.3d 888, 893 (5th Cir.2003)). . Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted). . To simplify, we speak at times of Cigna's obligations to insureds, but we recognize that Cigna only administers, and does not fund, many of the plans at issue. This distinction is not of consequence in our discussion of standing. . Cigna disputes the adequacy and existence of assignment for many claims. We leave it to the district court to resolve these fact-sensitive issues on remand. . Spinedex Physical Therapy USA Inc. v. United Healthcare of Ariz., Inc., 770 F.3d 1282, 1288-91 (9th Cir.2014)." }, { "docid": "22241637", "title": "", "text": "See U.S. Dep’t of Justice, SORNA Extensions Granted (Aug. 2, 2010), http:// www.ojp.usdoj.gov/smart/pdfs/ SORNAJExtensions_Granted.pdf. . 596 F.3d 255, 259 (5th Cir.2010). . 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (invalidating a federal law that required local law enforcement officials to conduct background checks of prospective handgun purchasers). . Id. at 935, 117 S.Ct. 2365. . See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (\"Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.’’) (internal quotation marks omitted); Nevares v. San Marcos Consol. Ind. Sch. Dist., 111 F.3d 25, 26 (5th Cir.1997) (recognizing that \"[f]ederal courts have no jurisdiction ... unless a case or controversy is presented by a party with standing to litigate”). . 306 U.S. 118, 144, 59 S.Ct. 366, 83 L.Ed. 543 (1939) (\"[T]here is no objection ... by the states, and, if this were not so, the appellants, absent the states or their officers, have no standing in this suit to raise any question under the [Tenth] amendment.”); see, e.g., Brooklyn Legal Servs. Corp. B. v. Legal Servs. Corp., 462 F.3d 219, 234-36 (2d Cir.2006); Medeiros v. Vincent, 431 F.3d 25, 33-36 (1st Cir.2005). . See Ass’n of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (recognizing Article III standing for petitioners and differentiating standing tests based on prior decisions such as Tennessee Electric). . 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). . See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301 F.3d 329, 332 (5th Cir.2002). . The First, Second, Third, Eighth, and Tenth Circuits have held that private parties do not have standing to bring such claims. See United States v. Shenandoah, 595 F.3d 151, 161-62 (3d Cir.2010); United States v. Hacker, 565 F.3d" }, { "docid": "12776695", "title": "", "text": "action in approving the grant. The “three-part test [for standing to contest validity of agency actions] established in Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) and Association of Data Processing Serv. Organ., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ... is: (1) the challenged action must result in injury-in-fact to the plaintiffs; (2) the interest invaded must be arguably within the zone of interest to be protected by the statute; and (3) there must be no statutory prohibition of judicial review.” Suntex Dairy v. Bergland, 591 F.2d 1063, 1066 (5th Cir. 1979). The constitutionally-compelled injury — in-f act element of the standing test requires the plaintiffs to demonstrate a sufficiently direct and concrete injury, Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 73, 98 S.Ct. 2620, 2631, 57 L.Ed.2d 595, 611 (1978), which is likely to be redressed if the plaintiffs prevail on the merits. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 561, 50 L.Ed.2d 450, 462 (1977); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450, 460 (1976). The mobility-disabled plaintiffs in the present case have met the constitutional requisite for standing; their injury-in-fact consists of the direct and personal loss they suffer if they are unable to use public transportation. The second element of the standing test is mandated by the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. and § 701 et seq. A person who is “adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof” under Section 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702. A plaintiff satisfies the APA standing requirement if his interests are arguably within the zone of interests that the statute in question was intended to protect or regulate. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184, 188 (1970). “The ‘relevant" }, { "docid": "22370671", "title": "", "text": "Christ v. FCC, supra note 14; Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608, 616 (2d Cir. 1965), cert. denied, Consolidated Edison Co. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Washington Dep’t of Game v. FPC, 207 F.2d 391, 395 n. 11 (9th Cir. 1953); see Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827 (1970). . That is the test of standing conferred by the Administrative Procedure Act, 5 U.S.C. § 702 (Supp. V, 1969). It is equivalent to the requirement that the complainant’s interest fall within the zone of interests sought to be protected by the statute. See Barlow v. Collins, 397 U.S. 159, 164-165, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153-155, 90 S.Ct. 827 (1970). . See NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); National Student Association v. Hershey, 134 U.S.App.D.C. 56, 73-74, 412 F.2d 1103, 1120-1121 (1969); United Federation of Postal Clerks, AFL-CIO v. Watson, 133 U.S.App.D.C. 176, 183-185, 409 F.2d 462, 469-471, cert. denied, Blount, Postmaster General v. United Federation of Postal Clerks, AFL-CIO, 396 U.S. 902, 90 S.Ct. 212, 24 L.Ed.2d 178 (1969); Citizens Ass’n of Georgetown v. Simonson, 131 U.S.App.D.C. 152, 403 F.2d 175 (1968), cert. denied, 3259 M Street, Inc. v. Citizens Ass’n of Georgetown, 394 U.S. 975, 89 S.Ct. 1454, 22 L.Ed.2d 755 (1969); MacArthur Liquors, Inc. v. Palisades Citizens Ass’n, 105 U.S.App.D.C. 180, 265 F.2d 372 (1959); and cases cited notes 14-15 supra. . See Administrative Procedure Act, 5 U.S.C. § 701(a) (2) (Supp. V, 1969); Curran v. Laird, 136 U.S.App.D.C. 280 286, 291, 420 F.2d 122, 128-133 (1969) (en banc). . Barlow v. Collins, 397 U.S. 159, 167, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); L. Jaffe, Judicial Control of Administrative Action 346 (1965)." }, { "docid": "4078326", "title": "", "text": "the 1978 Reform Act. In Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), this court held that 28 U.S.C. § 1331 (1976) is a jurisdictional predicate for claims of nonmonetary relief under the Administrative Procedure Act. Consequently, Smith’s claims for nonmonetary relief were properly before the district court of 1974. Because neither the district court’s nor our jurisdiction over this case is affected by the 1978 Reform Act or the 1982 Improvement Act, we have jurisdiction over Smith’s claims for nonmonetary relief. . 5 U.S.C. § 701 (1976) provides in pertinent part: (a) This chapter applies, according to the provisions thereof, except to the extent that— (2) agency action is committed to agency discretion by law. 5 U.S.C. § 706 (1976) provides in pertinent part: The reviewing court shall — ... (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . See L. Jaffee, Judicial Control of Administrative Action 359-63 (1965); 4 K. Davis, Administrative Law Treatise § 28.16 (1958); Saf-erstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,’’ 82 Harv.L.Rev. 367, 371-77 (1968). . Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 Harv.L.Rev. 367, 371 (1968) (footnote omitted). . See Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 454-63, 99 S.Ct. 2388, 2394-98, 60 L.Ed.2d 1017 (1979); Chrysler Corp. v. Brown, 441 U.S. 281, 317-18, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410-13, 91 S.Ct. 814, 820-22, 28 L.Ed.2d 136 (1971); Association of Data Processing Service Organization v. Camp, 397 U.S. 150, 156-157, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 166-67, 90 S.Ct. 832, 837-38, 25 L.Ed.2d 192 (1970); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1510-11, 18 L.Ed.2d 681 (1967); Rusk" }, { "docid": "15439235", "title": "", "text": "the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA), a statute which did not exist at the time Perkins was decided, to bring such a suit. The decision commands respect not only for its persuasiveness, but also because the D.C. Circuit is the forum with by far the most expertise in these matters. Scanwell has been followed in numerous other circuits. See Airco, Inc. v. Energy Research & Development Administration, 528 F.2d 1294 (7th Cir. 1975); Armstrong & Armstrong v. United States, 514 F.2d 402 (9th Cir. 1975); Hayes International Corp. v. McLucas, 509 F.2d 247 (5th Cir. 1975); Cincinnati Electronics Corp. v. Kleppe, 509 F.2d 1080 (6th Cir. 1975); Wilke v. Dep’t of the Army, 485 F.2d 180 (4th Cir. 1973); Merriam v. Kunzig, 476 F.2d 1233 (3d Cir.), cert. denied, 414 U.S. 911, 94 S.Ct. 233, 38 L.Ed.2d 149 (1973). Equally important, Supreme Court decisions since Edelman and Scanwell, lend substantial support to the Scanwell rationale. See, e.g., United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Association of Data Processing Services v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). The principles of standing enunciated in Scan well with respect to bidders on direct government procurement contracts apply with equal logic to procurements, as here, which are funded by government grants and subject to similar regulations to insure fair and competitive bidding. See, e.g., Airco, Inc. v. Energy Research & Development Administration, supra, 528 F.2d at 1296; Rossetti Contracting Co., Inc. v. Brennan, 508 F.2d 1039 (7th Cir. 1975). The defendants argue, however, that even if the Scanwell rule is applicable here, UC lacks standing because it is not a disappointed bidder, but a supplier. However, Section 10 of the APA entitles any party “adversely affected or aggrieved by agency action within the meaning of the relevant statute” to seek judicial review. 5 U.S.C. § 702. In Association of Data Processing Services v. Camp, supra, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184," }, { "docid": "15879834", "title": "", "text": "U.S. 137, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970)). The magistrate judge struck down the flow control ordinances, finding them to be to be facially discriminatory against interstate commerce. The magistrate judge also determined that the ordinances would not pass the Pike test, assuming arguendo, as defendants argued, that the ordinances were not facially discriminatory. C.Plaintiffs’ Standing Before we consider the merits, we must first determine whether plaintiffs BFI and Waste Management have standing to challenge the flow control ordinances. Although defendants have not explicitly raised the issue of standing, we may consider it sua sponte. Bauer v. Texas, 341 F.3d 352, 357 (5th Cir.2003). Our standing analysis consists of constitutional and prudential components. 1. Constitutional Standing “To meet the constitutional standing requirement, a plaintiff must show (1) an injury in fact (2) that is fairly traceable to the actions of the defendant and (3) that likely will be redressed by a favorable decision.” Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir.2001) (citing Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)). Plaintiffs meet the constitutional, or Article III, standing requirements. Because of the flow control ordinances, plaintiffs will not be able to ship the garbage they collect within the Region to the landfills of their choice and, as a result, will be forced to pay a “tipping” fee at the Authority’s landfill. Testimony at trial indicates that plaintiffs’ cost to dispose of waste at the Authority’s landfill, including the tipping fee and the transportation cost, would be higher than their current cost. Thus, plaintiffs have an injury (higher operating costs) that is traceable to the ordinances enacted by defendants and which would be remedied if we rule that the ordinances are unconstitutional. 2. Prudential Standing The more difficult question is whether plaintiffs meet the prudential standing requirements. The goal of the prudential standing requirements is to “determine whether the plaintiff ‘is a proper party to invoke judicial resolution of the dispute and" }, { "docid": "23197684", "title": "", "text": "(seventh) (1970). . 397 U.S. at 152, 90 S.Ct. 827. . Id. at 153, 90 S.Ct. at 830. . Id. at 155, 90 S.Ct. 827, quoting Arnold Tours, Inc. v. Camp, 408 F.2d 1147, 1153 (1st Cir. 1969). . 12 U.S.C. § 1864 (1970). . 397 U.S. at 156, 90 S.Ct. at 831. The Court went on to discuss “whether judicial review of the Comptroller’s action has been precluded,” id. and held that it had not. Id. at 157, 90 S.Ct. 827. Justice Brennan disagreed with the Data Processing majority’s approach to the standing question, arguing that a plaintiff has standing if he has suffered “injury in fact,” the Article III test. See Barlow v. Collins, 397 U.S. 159, 168, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) (Brennan, J., concurring and dissenting). He would treat the reviewability of agency action question as a totally separate inquiry. Id. at 173, 90 S.Ct. 832. . Compare Investment Co. Institute v. Camp, 401 U.S. 617, 640, 91 S.Ct. 1091, 28 L.Ed.2d 367 (Harlan, J., dissenting); Barlow v. Collins, 397 U.S. 159, 174-175, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) (Brennan, J., concurring and dissenting). . Compare Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (two-pronged standing test) with Barlow v. Collins, 397 U.S. 159, 170-173, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) (Brennan, J., concurring and dissenting) (Article III standing test) and Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). . Although the Supreme Court may search for only slight evidence that Congress intended to protect a plaintiff’s interests, it at least looks for some indicia. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 155, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968). The Court of Appeals for the District of Columbia Circuit, which permits judicial review for those seeking to do business with the government, has done so only after examining the legislative history and purpose" }, { "docid": "7642043", "title": "", "text": "particular issues.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). The Supreme Court has described standing as “containing] two strands: Article III standing, which enforces the Constitution’s case-or-controversy requirement; and prudential standing, which embodies judicially self-imposed limits on the exercise of federal jurisdiction.” Id. (citations and internal quotation marks omitted). Because Article III standing is a threshold issue, we must address it before considering questions of prudential standing. See Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301 F.3d 329, 332 (5th Cir.2002). Article III standing requires a plaintiff to show: “(1) an injury in fact (2) that is fairly traceable to the actions of the defendant and (3) that likely will be redressed by a favorable decision.” Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir.2001) (citations omitted). An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted). The City contends that Appellants lack Article III standing because they do not allege an injury that would be remedied by declaring the ordinance unconstitutional. Under our precedent, however, it appears that Appellants have made their showing of injury in fact because the permit fee increases their cost of doing business. In National Solid Waste Management Ass’n v. Pine Belt Regional Solid Waste Management Authority, the waste hauler plaintiffs were injured by an ordinance imposing a “tipping” fee for using the city’s landfill that ultimately resulted in higher operating costs to haulers. 389 F.3d 491, 498 (5th Cir.2004) (“[Plaintiffs’ cost to dispose of waste [under the ordinance], including the tipping fee and the transportation cost, would be higher than their current cost.”). Similarly, Appellants have incurred higher operating costs as a result of the City’s ordinance, which imposes an increased cost per vehicle for obtaining a permit to collect and dispose of waste in San Antonio. This" }, { "docid": "23583061", "title": "", "text": "received severance pay, and 5 were separated and did not receive any benefits. The remaining employees were reassigned to other civil service jobs. App. 6a; 149a. . 5 U.S.C. §§ 701-06 (1976). . 5 U.S.C. § 702 (1976). For purposes of the APA the Department of Defense as well as Its subdivisions is an “agency.” See 5 U.S.C. § 701(b)(1) (1976). . 5 U.S.C. § 701(a) (1976). . Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 99 L.Ed. 868 (1955). . Abbott Laboratories, supra 387 U.S. at 141, 87 S.Ct. at 1511, quoting Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962). Accord, Southern Ry. Co. v. Seaboard Allied Milling Corp.,-U.S.-, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (U.S.1979); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). See also Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 53 L.Ed.2d 506 (1977); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 156-57, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). . See, e. g., Abbott Laboratories, supra, 387 U.S. at 140 — 41, 87 S.Ct. 1507. See generally K. C. Davis, Administrative Law of the Seventies § 28.16 (1976); K. C. Davis, Administrative Law Treaties § 28.16 (1958 & Supp.1970); Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion\", 82 Harv.L.Rev. 367 (1968). Compare Berger, Administrative Arbitrariness: A Synthesis, 78 Yale L.J. 965 (1969). . Ferry v. Udall, 336 F.2d 706, 711 (9 Cir. 1964), cert. denied, 381 U.S. 904, 85 S.Ct. 1449, 14 L.Ed.2d 286 (1965). Judicial reluctance to review agency decisions made under a grant of broad discretion has been justified by one commentator on two grounds: First, without benefit of a statutory delineation of the limits of discretion it would be very difficult" }, { "docid": "4078327", "title": "", "text": "L. Jaffee, Judicial Control of Administrative Action 359-63 (1965); 4 K. Davis, Administrative Law Treatise § 28.16 (1958); Saf-erstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,’’ 82 Harv.L.Rev. 367, 371-77 (1968). . Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 Harv.L.Rev. 367, 371 (1968) (footnote omitted). . See Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 454-63, 99 S.Ct. 2388, 2394-98, 60 L.Ed.2d 1017 (1979); Chrysler Corp. v. Brown, 441 U.S. 281, 317-18, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410-13, 91 S.Ct. 814, 820-22, 28 L.Ed.2d 136 (1971); Association of Data Processing Service Organization v. Camp, 397 U.S. 150, 156-157, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 166-67, 90 S.Ct. 832, 837-38, 25 L.Ed.2d 192 (1970); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1510-11, 18 L.Ed.2d 681 (1967); Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 794, 7 L.Ed.2d 809 (1962). . See Kirby v. United States, 675 F.2d 60, 67 (3d Cir.1982); Gatter v. Nimmo, 672 F.2d 343, 345 (3d Cir.1982); Society Hill Civic Ass’n v. Harris, 632 F.2d 1045, 1055 (3d Cir.1980); Local 2855, AFGA (AFL-CIO) v. United States, 602 F.2d 574, 578-80 (3d Cir.1979); Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29, 35-36 (3d Cir.1976). . We do not hold that the Service, by representing that it would “convert” its term deputies, forfeited all of its discretion to request or not to request certificates. That is, we do not hold that the Service obliged itself to request certificates regardless of its hiring needs at any particular time, or of other relevant factors that might have informed the exercise of its discretion. We simply hold that having promised to use the certification procedure to implement its “conversion” program, the Service thereupon obliged itself to exercise its discretion to request certificates in a rational, nonarbitrary fashion. . The" }, { "docid": "60354", "title": "", "text": "exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citations omitted). B The standing doctrine addresses the question of who may properly bring suit in federal court, and “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). It “involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To establish standing, a plaintiff must meet both constitutional and prudential requirements. See, e.g., Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001). Dallas County contends that plaintiffs lack constitutional standing, which requires that a litigant establish three elements: (1) an injury-in-fact that is concrete and actual or imminent, not hypothetical; (2) a fairly traceable causal link between the injury and the defendants’ actions; and (3) that the injury will likely be redressed by a favorable decision. See, e.g., Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009). C Dallas County maintains that plaintiffs cannot meet the “causal link” requirement of constitutional standing with respect to their “overdetention” claim because 8 C.F.R. § 287.7(d) provides that the local law enforcement agency “shall” maintain custody of an alien pursuant to an ICE detainer, and plaintiffs’ alleged detention in the DCJ after they were otherwise eligible for release was caused by the independent action of ICE in issuing the immigration detainers, not by Dallas County. Regarding plaintiffs’ § 1983 claim based on Dallas County’s alleged failure to allow bond, Dallas County contends that plaintiffs have failed to allege that Dallas County or Dallas County Sheriff Lupe Valdez (“Sheriff Valdez”) had the authority to set bond or to allow them to post bond in connection with the state criminal charges pending against them (only the presiding judge in these cases had authority to set bonds in connection with the state criminal charges);" }, { "docid": "18320260", "title": "", "text": "on the merits. 13 Wright & Miller, Federal Practice and Procedure § 3534 at 314 (1976). (Footnotes omitted). For these reasons, the Court believes this case is justiciable notwithstanding the Supreme Court’s admonition in Mathews v. Diaz, supra. 3. STANDING The “three-part test [for standing to contest the validity of agency actions] established in Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) and Association of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ... is: (1) the challenged action must result in injury-in-fact to the plaintiffs; (2) the interest invaded must be arguably within the zone of interest to be protected by the statute; and (3) there must be no statutory prohibitive of judicial services.” Suntex Dairy v. Bergland, 591 F.2d 1063, 1066 (5th Cir. 1979). The injury-in-fact element of the standing test requires Plaintiffs to demonstrate a sufficiently direct and concrete injury. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), which is likely to be readdressed if Plaintiffs prevail on the merits. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). The Plaintiff class members in the case sub judice have met this constitutional requisite for standing; their injury-in-fact consists of their continued, allegedly illegal, incarceration pending resolution of their political asylum claims. The second element of the standing test is mandated by the APA. A person who is “adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof” under Section 10(a) of the APA. 5 U.S.C. § 702. A plaintiff satisfies the APA’s standing requirement if his interests are arguably within the zone of interests that the statute in question was intended to protect or regulate. Association of Data Processing Service Organization, Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827," }, { "docid": "15879833", "title": "", "text": "be unconstitutional unless the state actor “can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest.” Id. (internal quotations and citations omitted). “At a minimum such facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.” Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 1737, 60 L.Ed.2d 250 (1979). “Under this strict scrutiny, ... the state bears the heavy burden to rescue its statutes.” Dickerson, 336 F.3d at 396 (internal quotations and citations omitted). “This burden is stringent” and the statute at issue is “generally struck down ... without further inquiry.” Id. (internal quotations and citations omitted). With the second category — the “evenhanded statutes” that effectuate a legitimate local interest and that only incidentally affect interstate commerce — we apply the “Pike balancing test.” The statute will be upheld unless the burden it imposes on interstate commerce is “ ‘clearly excessive in relation to the putative local benefits.’ ” Id. (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970)). The magistrate judge struck down the flow control ordinances, finding them to be to be facially discriminatory against interstate commerce. The magistrate judge also determined that the ordinances would not pass the Pike test, assuming arguendo, as defendants argued, that the ordinances were not facially discriminatory. C.Plaintiffs’ Standing Before we consider the merits, we must first determine whether plaintiffs BFI and Waste Management have standing to challenge the flow control ordinances. Although defendants have not explicitly raised the issue of standing, we may consider it sua sponte. Bauer v. Texas, 341 F.3d 352, 357 (5th Cir.2003). Our standing analysis consists of constitutional and prudential components. 1. Constitutional Standing “To meet the constitutional standing requirement, a plaintiff must show (1) an injury in fact (2) that is fairly traceable to the actions of the defendant and (3) that likely will be redressed by a favorable decision.” Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir.2001) (citing Bennett v. Spear, 520 U.S. 154," }, { "docid": "7642042", "title": "", "text": "not interfere with interstate commerce. Appellants filed a Federal Rule of Civil Procedure 59(e) motion to alter or amend the judgment, and, upon its denial by the district court, Appellants timely appeal. STANDARD OF REVIEW We review de novo a grant or denial of summary judgment, applying the same standards as the district court. Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir.2010). Viewing all evidence in the light most favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), we will affirm a grant of summary judgment only if the evidence shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, Fed.R.Civ.P. 56(a). ANALYSIS Every party that comes before a federal court must establish that it has standing to pursue its claims. The doctrine of standing asks “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). The Supreme Court has described standing as “containing] two strands: Article III standing, which enforces the Constitution’s case-or-controversy requirement; and prudential standing, which embodies judicially self-imposed limits on the exercise of federal jurisdiction.” Id. (citations and internal quotation marks omitted). Because Article III standing is a threshold issue, we must address it before considering questions of prudential standing. See Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301 F.3d 329, 332 (5th Cir.2002). Article III standing requires a plaintiff to show: “(1) an injury in fact (2) that is fairly traceable to the actions of the defendant and (3) that likely will be redressed by a favorable decision.” Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir.2001) (citations omitted). An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of" } ]

[ { "docid": "22559427", "title": "", "text": "these circumstances: Though, as the District Court observed, “[t]here is a certain vagueness about [his] history,” respondent seemingly was born in Gibraltar of Hungarian or Rumanian parents and lived in the United States from 1923 to 1948. In May of that year he sailed for Europe, apparently to visit his dying mother in Rumania. Denied entry there, he remained in Hungary for some 19 months, due to “difficulty in securing an exit permit.” Finally, armed with a quota immigration visa issued by the American Consul in Budapest, he proceeded to France and boarded the lie de France in Le Havre bound for New York. Upon arrival on February 9, 1950, he was temporarily excluded from the United States by an immigration inspector acting pursuant to the Passport Act as amended and regulations thereunder. Pending disposition of his case he was received at Ellis Island. After reviewing the evidence, the Attorney General on May 10, 1950, ordered the temporary exclusion to be made permanent without a hearing before a board of special inquiry, on the “basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest.” That determination rested on a finding that respondent’s entry would be prejudicial to the public interest for security reasons. But thus far all attempts to effect respondent’s departure have failed: Twice he shipped out to return whence he came; France and Great Britain refused him permission to land. The State Department has unsuccessfully negotiated with Hungary for his readmission. Respondent personally applied for entry to about a dozen Latin-American countries but all turned him down. So in June 1951 respondent advised the Immigration and Naturalization Service that he would exert no further efforts to depart. In short, respondent sat on Ellis Island because this country shut him out and others were unwilling to take him in. Asserting unlawful confinement on Ellis Island, he sought relief through a series of habeas corpus proceedings. After four unsuccessful efforts on respondent’s part, the United States District Court for the Southern District of New York on November 9, 1951, sustained the writ." } ]

[ { "docid": "20466582", "title": "", "text": "a nonimmigrant’s admission for a temporary period, that the period has elapsed, and that the nonimmigrant has not departed. Any fraud or misrepresentation at time of entry is irrelevant to the charge of overstay. ...”). We have also safeguarded the government’s ability to select the ground on which to remove aliens who are here illegally. See Ntovas v. Ahrens, 276 F.2d 483, 484 (7th Cir.1960) (“In the administrative proceedings the ground selected and relied upon by the government was not fraud or misrepresentation and plaintiff has not the power to substitute for his own convenience a ground not involved in the deportation proceedings.”). The government in this case was therefore entitled to select overstay under the terms of the VWP as the ground for removing Bayo. B Immigration law draws a bright line between “an alien who has effected an entry into the United States and one who has never entered.” Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). We acknowledge that those who stand at the threshold of admission are subject to special rules. See Shaughnessy v. United States, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (“[A]n alien on the threshold of initial entry stands on a different footing: Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”) (internal quotation marks omitted). The parties, however, do not dispute that Bayo has entered the United States, and so the “entry fiction” doctrine does not apply to him. Once he crossed the border, Bayo became entitled to certain constitutional rights, including the right to due process. See Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”); Yick Wo v. Hopkins, 118 U.S. 356, 368, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (“The Fourteenth Amendment to the Constitution is not confined to the protection of citizens.... [Its] provisions are" }, { "docid": "11827557", "title": "", "text": "v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (internal quotation marks omitted)). But the notion that, while in New York City, Arar was not “physically present” in the United States, is a legal fiction peculiar to immigration law. It is relevant only to the determination of an alien’s immigration status and related matters. It is indeed a fiction that works largely to the benefit of aliens, permitting them to remain here while immigration officials determine whether they are legally admissible. If Arar had been seeking to immigrate to the United States, had he been detained at the immigration entry point at JFK Airport; had he thereafter been held at the MDC in Brooklyn pending deportation to his home in Canada, he presumably would have properly been treated, for immigration purposes, as though he had been held or turned back at the border. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (“Aliens seeking entry obviously can be turned back at the border without more.... [Temporary harborage, an act of legislative grace, bestows no additional rights.”); Kaplan v. Tod, 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585 (1925) (concluding that an unadmitted alien held on Ellis Island, and later elsewhere within the United States, was “to be regarded as stopped at the boundary line” for naturalization purposes). But for purposes of assessing his treatment by law enforcement agents during his detention and interrogation in several places in the City of New York, it cannot follow from a legal fiction applicable to immigration status that Arar, rather like the fictional “little man who wasn’t there,” was never in this country. Arar sought not to enter this country, but to leave it, after transiting briefly through one of its airports. For purposes of identifying the most rudimentary of his rights under the Constitution, the fiction that Arar was not here is senseless. He was here, as a matter of both fact and law, and was therefore entitled to protection against mistreatment under the Due Process Clause." }, { "docid": "3892818", "title": "", "text": "which Hoyte was cited while detained, including possession of an unauthorized item, insolence, stealing, being absent from his assignment, and refusing an order. In October 2000 Hoyte filed a petition for writ of habeas corpus alleging that his “indefinite” detention pending deportation, caused by Cuba’s refusal to repatriate him and INS’s refusal to release him on parole, violates due process and amounts to cruel and unusual punishment. Relying on our decision in Carrera-Valdez v. Perryman, 211 F.3d 1046 (7th Cir.2000), the district court denied the petition, finding no constitutional violation in the indefinite detention of an excludable alien who is subject to an elaborate mandatory administrative review process that annually reevaluates his parole eligibility. Our decision in Carrerar-Valdez principally relied on the Supreme Court’s pronouncement in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), that the United States could constitutionally detain an ex-cludable alien indefinitely if his country of origin refused to accept his return. Carr-era-Valdez, 211 F.3d at 1048. Since our decision in Carrera-Valdez, the Supreme Court decided Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), in which it considered the constitutionality of the indefinite detention of resident aliens awaiting deportation. In doing so, the court reaffirmed its decision in Mezei by distinguishing between excluda-ble aliens and aliens who were admitted to the United States but subsequently ordered removed. Zadvydas, 533 U.S. at 682, 121 S.Ct. at 2495 (noting that “[ajliens who have not yet gained initial admission to this country would present a very different question”). The Court’s holding in Mezei remains unaffected by the Zadvydas decision. Id. at 2500, 121 S.Ct. 2491 (explaining that Mezei’s excludable status “made all the difference”). Mezei remains good law, and by extension so too does our holding in Carrerar-Valdez. Since Hoyte, like Mezei, was never granted admission to the United States prior to his exclusion, -the Fifth Amendment does not offer him the same protections as resident aliens who are subsequently ordered removed. See Zadvydas, 533 U.S. at 687, 121 S.Ct. at 2500; Carballo v. Luttrell, No." }, { "docid": "23672696", "title": "", "text": "for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. Id. at 693, 121 S.Ct. 2491 (citations omitted). Similarly, when considering whether certain conditions could be placed on an alien’s eligibility for federal medical insurance, the Supreme Court stated, There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection. Mathews v. Diaz, 426 U.S. 67, 69, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (citation omitted); see also, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (“It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to ... due process of law.”). This long line of precedent admits of no exception: an alien who has entered the United States is guaranteed due process protections. Here, there is no dispute that Raya-Vaca had entered the United States in July 2011 before he was apprehended near the State Route 94 Border Patrol checkpoint, outside Potrero, California, within the borders of the United States. Even an alien who has run some fifty yards into the United States has entered the country. See United States v. Martin-Plascencia, 532 F.2d 1316, 1317-18 (9th Cir.1976) (affirming adjudication of illegal entry for alien who had avoided inspection at the border and had run into the country before being apprehended); see also Matter of Z-, 20 I. & N. Dec. 707, 713-14 (BIA 1993) (finding that alien had entered country when he disembarked from his vessel “onto dry land within the territorial boundaries of the United States at an area not designated as a port of entry,” after which he “fled for some distance into the interi- or”). Heeding, as we must, the" }, { "docid": "22975762", "title": "", "text": "alleged the violation of a constitutional right, “[w]e are obligated under Saucier ... to address this issue at the outset of our qualified immunity analysis”). In light of our preceding discussion concluding that only Wong’s discrimination claims continue to be viable, see supra at 969, we limit our substantive constitutional analysis to her entitlement to the rights implicated by those claims. The Supreme Court has long recognized a distinction between the constitutional rights afforded those who have effected an entry into the U.S., whether legally or otherwise, and those considered never to have entered. See Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); Xi v. U.S. INS, 298 F.3d 832, 837 (9th Cir.2002). Aliens inside the U.S., regardless of whether their presence here is temporary or unlawful, are entitled to certain constitutional protections unavailable to those outside our borders. See Zadvydas, 533 U.S. at 693-94, 121 S.Ct. 2491; see also Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (“Whatever his status under the immigration laws, an alien is surely a ‘person! in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (“[The Fourteenth Amendment’s] provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.”). At the same time, under the “entry fiction” recognized in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), an alien seeking admission has not “entered” the United States, even if the alien is in fact physically present. See id. at 213, 215, 73 S.Ct. 625; see also Kaplan v. Tod, 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585 (1925) (though present in the United States, excluded alien “was still in theory of law at the boundary line and had" }, { "docid": "21447455", "title": "", "text": "United States and one who has never entered runs throughout immigration law.”). The distinction' was a- crucial one. By virtue of their presence in the United States, aliens in deportation proceedings had greater procedural and substantive rights than aliens in exclusion proceedings — an administrative hearing and an appeal, the right to designate the country of deportation; and the right to seek voluntary departure. Landon, 459 U.S. at 26, 103 S.Ct. 321. By contrast, an excludable alien is a determi nation at the, border, “usually ... at the port of entry.”. Landon, 459 U.S. at 25, 103 S.Ct. 321. As the Court explained in Zadvydas, “certain constitutional protections available to persons inside the United States are unavailable to aliens outside our geographic borders. But once ■ an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens.” 533 U.S. at 693, 121 S.Ct. 2491. See generally David A. Martin, Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis, 2001 Sup. Ct. Rev. 47, 92-100. The distinction between excludable and deportable aliens required courts to confront a largely metaphysical, but tricky immigration law problem: What was to be done about aliens who physically crossed the United States border but never reached the point of being able to move freely within the country and mix with the general population? The paradigm example for this is an alien who presents himself at a port of entry and is taken to a “secondary inspection” area, technically across the international border, for further investigation into whether he is authorized to enter the United States. Was the alien now entitled to a deportation proceeding because border agents walked him a few feet across the border? The courts, responded to this conceptual ambiguity about which due process rights apply in the immigration context by developing the “legal fiction that entry is not accomplished until a person is free from official restraint.” United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir.2001). Under this legal fiction, an alien who never" }, { "docid": "23015716", "title": "", "text": "remanded sub nom. Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (\"In Mezei, the Court relied on the entry fiction ... in holding that an excludable alien is not entitled to procedural due process.”). The Mezei Court then went on to hold that \"we do not think that respondent's continued exclusion deprives him of any statutory or constitutional right.” Id. at 215, 73 S.Ct. 625 (emphasis added). We believe that the Court in Mezei, therefore, did not address indefinite or potentially indefinite detention as a violation of Mezei’s substantive due process rights. Inasmuch as Rosales and Carballo do not challenge their exclusion, we believe that their cases present a different question. We recognize, however, that other circuits have not read Mezei in this way. See, e.g., Carrera-Valdez, 211 F.3d at 1048 (stating that the Mezei Court \"held that an excludable alien may be detained indefinitely when his country of origin will not accept his return”); Kim Ho Ma, 208 F.3d at 823 (\"[T]he Court held that Mezei could be detained indefinitely on Ellis Island.”). Moreover, the Court in Zadvydas noted that “Mezei, like the present cases, involves indefinite detention.” Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491. Therefore, we address Mezei as “it involves indefinite detention.” . According to the Court, Mezei’s exclusion \"rested on the finding that [his] entry would be prejudicial to the public interest for security reasons.” Mezei, 345 U.S. at 208, 73 S.Ct. 625. The Court did not explain the precise nature of the security threat, but Mezei was decided during the Korean War, and the Court did specifically note that Mezei \"left the United States and remained behind the Iron Curtain for 19 months.” Id. at 214, 73 S.Ct. 625. In addition, Justice Jackson in dissent, stated that: \"[M]y apprehensions about the security of our form of government are about equally aroused by those who refuse to recognize the dangers of Communism and those who will not see danger in anything else.” Id. at 227, 73 S.Ct. 625 (Jackson, J., dissenting). . We note that a possible means of reconciling" }, { "docid": "23015663", "title": "", "text": "625, 97 L.Ed. 956 (1953). See Zadvydas, 533 U.S. at 693-95, 121 S.Ct. 2491. The Court stated that “[although Mezei, like the present cases, involves indefinite detention, it differs from the present cases in a critical respect.... [Mezei’s] presence on Ellis Island did not count as entry into the United States.” Id. at 693, 121 S.Ct. 2491. The Court then further explained: The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.... It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders .... [0]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. Id. According to the government, “[i]t is unreasonable to assume the Zadvydas Court went to such great lengths to distinguish the Government’s authority to detain inadmissible aliens from its authority to detain aliens who have entered the country only to mandate that the courts treat both groups of aliens identically under § 1231(a)(6).” Gov’t Supp. Br. re Rosales at 38-39. We agree with the government that the Zadvydas Court addressed only the constitutional concerns raised by the indefinite detention of aliens who are removable on grounds of deportability, but we also agree with the Ninth Circuit in Lin Guo Xi that the Supreme Court’s holding in Zadvydas was “unqualified,” Lin Guo Xi, 298 F.3d at 836. “Although Zadvydas concerned the second prong of the statute — relating to deportable aliens — the Court’s ultimate holding addresses the statute as a whole: “we construe the statute to contain an implicit “reasonable time” limitation, the application of which is subject to federal court review.’ ” Lin Guo Xi, 298 F.3d at 835 (quoting Zadvydas, 533 U.S. at 682, 121 S.Ct. 2491). The Zadvydas Court also noted that the statute “applies to certain categories of aliens who have been ordered removed, namely inadmissible aliens, criminal aliens, aliens" }, { "docid": "15710556", "title": "", "text": "F.3d at 448. The majority’s conclusion derives primarily from two decisions of sister circuits, United States v. Canals-Jimenez, 943 F.2d 1284 (11th Cir.1991), and United States v. Angeles-Mascote, 206 F.3d 529 (5th Cir.2000). In each case, a defendant deboarded an international flight at a United States airport. Both defendants voluntarily proceeded to an immigration officer and attempted to gain entry to the United States, whereupon they were apprehended and ultimately convicted for being “found in” the United States. Canals-Jimenez, 943 F.2d at 1285-86; Angeles-Mascote, 206 F.3d at 530. The Eleventh Circuit held that the “found in” language of § 1326 was inapplicable. Canals-Jimenez, 943 F.2d at 1288. “Section 1326 applies only to situations in which an alien is discovered in the United States after entering the country surreptitiously by bypassing recognized immigration ports of entry....” Id. See also Angeles-Mascote, 206 F.3d at 531 (“Any party who voluntarily approaches an INS station cannot be said to have been found or discovered in the United States.”). However, this language in Canals-Jimenez was later determined to be mere dicta. See United States v. Gay, 7 F.3d 200, 202 (11th Cir.1993) (“[T]he Canals court was merely using a surreptitious entry as the most obvious example of an illegal entry which would not be detected by immigration officials, and after which an alien who had illegally entered might be ‘found in’ the United States.... Thus, we conclude that the reference in Canals to surreptitious entry is mere dicta and is not controlling.”). Even assuming that the Fifth Circuit’s pronouncement in Angeles-Mascóte does not suffer from the same questions regarding its continuing vitality as does the Eleventh Circuit’s decision in Canals-Jimenez, its analysis is implicitly undermined by our caselaw. Like our sister circuits, we have “construe[d] [official] restraint broadly.” Ruiz-Lopez, 234 F.3d at 448. We have not, however, dispensed with the concept of “restraint” altogether. Instead, we have adhered closely to the stated requirement that, in order to constitute official restraint, an alien must be subjected to constant surveillance. See United States v. Ramos-Godinez, 273 F.3d 820, 824-25(9th Cir.2001) (“[W]hen the defendant has managed to evade" }, { "docid": "15081700", "title": "", "text": "a deported alien to remain in the United States until he is ‘found’ by the authorities”). Second, when an alien is entering the United States from a foreign country and is discovered at the border, he cannot be found in the United States until he is free from official restraint. See United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir.2000) (“An alien’s mere physical presence on United States soil ... is insufficient to convict him of being found in the United States.... Rather, the government must also establish that the alien entered the United States free from official restraint at the time officials discovered or apprehended him.”). As applied here, however, Gonzalez-Diaz’s argument is without merit because he neither departed the United States nor entered Canada in the sense contemplated by the aforementioned authorities. Our conclusion is dictated by United States v. Ambriz-Ambriz, 586 F.3d 719 (9th Cir. 2009), which we decided shortly after Gonzalez-Diaz’s trial. Ambriz was a citizen of Mexico who, like Gonzalez-Diaz, had been in the United States illegally for some time before attempting to leave the United States by driving to Canada. See id. at 721, 723. The vehicle in which he was traveling with two other individuals crossed onto Canadian soil but was denied entry into Canada and forced to proceed back to the United States port of entry, where U.S. immigration agents stopped the vehicle, discovered that Ambriz was in the United States unlawfully and arrested him. See id. at 721. Like Gonzalez-Diaz, Ambriz was convicted of being found in the United States following deportation in violation of § 1326. On appeal, he argued that he was not found in the United States because he was under official restraint when he was apprehended at the U.S. border. See id. at 722. We rejected Ambriz’s argument, explaining that the official restraint doctrine “pertains to an individual entering the United States from a foreign country, and thus is inapplicable to Mr. Ambriz’s situation.” Id. at 723. “Although Ambriz may have technically traveled onto Canadian land from the United States, he was never legally in Canada," }, { "docid": "23672695", "title": "", "text": "and (3) the officer’s failure to afford Raya-Vaca the opportunity to consult with counsel. A. Applicability of the Due Process Clause We first confront the threshold question whether the Due Process Clause, with its attendant protections, applied to Raya-Vaca at the time of his expedited removal proceedings. The Supreme Court has categorically declared that once an individual has entered the United States, he is entitled to the protection of the Due Process Clause. In Zadvydas v. Davis, the Supreme Court considered the constitutionality of indefinitely detaining aliens who were once admitted to the United States but later ordered removed. 533 U.S. 678, 682, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). In holding unconstitutional the indefinite detention of an alien present within the United States, the Court distinguished the situation at hand from one involving an alien seeking entry into the country: The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.... [0]nee an alien enters the country, [his] legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. Id. at 693, 121 S.Ct. 2491 (citations omitted). Similarly, when considering whether certain conditions could be placed on an alien’s eligibility for federal medical insurance, the Supreme Court stated, There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection. Mathews v. Diaz, 426 U.S. 67, 69, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (citation omitted); see also, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (“It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to ... due process" }, { "docid": "4432280", "title": "", "text": "332 U.S. at 391, 68 S.Ct. at 12. In Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576 (1953), the Supreme Court held an alien lawfully admitted to permanent residence was not deprived of the rights of a resident upon his return to the United States from a voyage as a merchant seaman when he had stopped at but remained aboard the vessel at foreign ports of call. The Court found the alien entitled, under the due process clause of the Fifth Amendment, to a hearing on his objections to deportation, a right he would not have enjoyed without his resident status. In a 5-4 decision the Supreme Court in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), held that an alien who had traveled abroad and remained in Hungary for nineteen months could be treated as an “entering alien,” and be detained on Ellis Island without a hearing on his threatened exclusion. 345 U.S. at 213, 73 S.Ct. 625. Kwong Hai Chew was distinguished by the majority on the grounds that Kwong’s maritime service was continuous residence for naturalization purposes and that Kwong was pursuing his vocation for four months aboard an American ship. 345 U.S. at 213-214, 73 S.Ct. 625. Mezei did not affect the holdings in Delgadillo, Di Pasquale, or other cases following them, e. g., Carmichael v. Delaney, 170 F.2d 239 (9th Cir. 1948)' (no “entry” occurred after ship to which resident alien was assigned stopped at many ports and alien debarked, because of ship movements pursuant to Navy orders) ; Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir. 1947) (no “entry” occurred after ship carrying resident alien back from seasonal cannery work in Alaska made unscheduled stop in Vancouver, B. C.). In Savoretti v. United States ex rel. Pincus, 214 F.2d 314 (5th Cir. 1954), decided after Mezei but relying on Delgadillo and Di Pasquale, a resident alien was held not to have made a new entry after the fishing boat on which he was sleeping (after some serious drinking)" }, { "docid": "23015725", "title": "", "text": "F.3d 1441, 1445 (9th Cir.1995); Gisbert v. Attorney General, 988 F.2d 1437, 1448 (5th Cir.1993), amended by 997 F.2d 1122 (5th Cir.1993) (per curiam); Garcia-Mir v. Meese, 788 F.2d 1446, 1449-51 (11th Cir.1986); Palma v. Verdeyen, 676 F.2d 100, 103-04 (4th Cir.1982). As against these newly minted rights, we have longstanding and clear Supreme Court precedent. The Supreme Court, in determining the scope of due process rights of aliens, has consistently distinguished between deportable and excludable aliens. In Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), the Court definitively held that excludable aliens, unlike aliens who are merely deportable, have no constitutional right against indefinite detention in the event that they cannot be returned to their country of origin. Indeed, the circumstances of Mezei were far more compelling than those of Rosales and Carballo. Mezei had committed no crime. He had been a longtime resident of the United States, and had always been law abiding during that time. He simply went abroad for a period of 19 months, and was detained at the border when he returned. The Supreme Court held that he could be detained indefinitely, if no country could be found to take him. In Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court reinforced the distinction between excludable and deportable aliens. There, the Court suggested that deporta-ble aliens may have a constitutional right against indefinite detention. Id. at 682, 121 S.Ct. 2491 (suggesting that “indefinite detention beyond the time necessary for removal” of deportable aliens “would raise serious constitutional concerns”). But the Court carefully restricted its concerns to deportable aliens. As the Court explained, “the distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.” Id. at 691, 121 S.Ct. 2491. Specifically, the Court recognized again that “it is well established that certain constitutional protections available to persons inside the United States are unavailable to persons outside of our geographic borders,” including those who have not formally “entered”" }, { "docid": "23015726", "title": "", "text": "19 months, and was detained at the border when he returned. The Supreme Court held that he could be detained indefinitely, if no country could be found to take him. In Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court reinforced the distinction between excludable and deportable aliens. There, the Court suggested that deporta-ble aliens may have a constitutional right against indefinite detention. Id. at 682, 121 S.Ct. 2491 (suggesting that “indefinite detention beyond the time necessary for removal” of deportable aliens “would raise serious constitutional concerns”). But the Court carefully restricted its concerns to deportable aliens. As the Court explained, “the distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.” Id. at 691, 121 S.Ct. 2491. Specifically, the Court recognized again that “it is well established that certain constitutional protections available to persons inside the United States are unavailable to persons outside of our geographic borders,” including those who have not formally “entered” the United States, such as excludable aliens paroled into the United States. Ibid. The Supreme Court specifically indicated that it was not questioning the validity of Mezei, and noted that the case of Zad-vydas “differed in a critical respect” from Mezei exactly because Mezei had been detained at the border, while Zadvydas had entered the United States. Id. at 693, 121 S.Ct. 2491 (emphasis added). The Supreme Court has recently and emphatically instructed us that we should leave the overruling of Supreme Court precedents to that Court, even if we believe, or divine, that the Court should, or will, overrule them. Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). No matter how much the court may disagree with the distinction between excludable and deportable aliens, it simply cannot be disputed that the controlling Supreme Court precedent makes that distinction and holds that excludable aliens do not have a constitutional right to be permitted to remain in the United States at liberty if their removal cannot be seasonably obtained. The" }, { "docid": "2778778", "title": "", "text": "privilege granted by the sovereign United States Government. Such a privilege is granted to an alien only upon such terms as the United States shall prescribe.” Knauff, 338 U.S. at 542, 70 S.Ct. 309. Much of what we have just written served as the foundation for the Supreme Court’s opinion in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), a case analogous to this one in several ways. The government held an alien at the border (Ellis Island, New York). He had been denied entry into the United States under the immigration laws. But no other country was willing to receive him. The Court ruled that the alien, who petitioned for a writ of habeas corpus, had not been deprived of any constitutional rights. Id. at 215, 73 S.Ct. 625. In so ruling the Court necessarily rejected the proposition that because no other country would take Mez-ei, the prospect of indefinite detention entitled him to a court order requiring the Attorney General to release him into the United States. As the Supreme Court saw it, the Judiciary could not question the Attorney General’s judgment. Id. at 212, 73 S.Ct. 625. Neither Zadvydas, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653, nor Clark v. Martinez, 543 U.S. 371, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005), are to the contrary. Petitioners are incorrect in viewing these cases as holding that the constitutional “liberty interests of concededly illegal aliens trumps [sic] statutory detention power pending exclusion once that detention becomes indefinite.” Pet’rs’ Br. 29. Both cases rested on the Supreme Court’s interpretation not of the Constitution, but of a provision in the immigration laws — a provision, the Court acknowledged, Congress had the prerogative of altering. See Clark, 543 U.S. at 386, 125 S.Ct. 716. It is true that Zadvydas spoke of an alien’s due process rights, but the Court was careful to restrict its statement to aliens who had already entered the United States. 533 U.S. at 693, 121 S.Ct. 2491. It was on that ground that the Court distinguished Mezei. Id." }, { "docid": "11827556", "title": "", "text": "it a corresponding duty to assume some responsibility for his safety and general well-being. Under these limited circumstances, the state may owe the incarcerated person an affirmative duty to protect against harms to his liberties inflicted by third parties.” Matican v. City of New York, 524 F.3d 151, 155-56 (2d Cir.2008) (citations, internal quotation marks, and footnotes omitted). This “duty arises solely from the State’s affirmative act of restraining the individual’s freedom to act on his own behalf through incarceration, institutionalization, or other similar restraint of personal liberty.” Id. The majority reaches the wrong conclusion in large measure, I think, by treating Arar’s claims as though he were an unad-mitted alien seeking entry into the United States. The majority asserts that “[a]s an unadmitted alien, Arar as a matter of law lacked a physical presence in the United States.” Ante at 186. And it concludes from this that “the full protections of the due process clause” do not apply to Arar because they “apply only to ‘persons within the United States.’ ” Id. (quoting Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (internal quotation marks omitted)). But the notion that, while in New York City, Arar was not “physically present” in the United States, is a legal fiction peculiar to immigration law. It is relevant only to the determination of an alien’s immigration status and related matters. It is indeed a fiction that works largely to the benefit of aliens, permitting them to remain here while immigration officials determine whether they are legally admissible. If Arar had been seeking to immigrate to the United States, had he been detained at the immigration entry point at JFK Airport; had he thereafter been held at the MDC in Brooklyn pending deportation to his home in Canada, he presumably would have properly been treated, for immigration purposes, as though he had been held or turned back at the border. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (“Aliens seeking entry obviously can be turned back at" }, { "docid": "23015662", "title": "", "text": "the same meaning for an individual deemed inadmissible to the United States under 8 U.S.C. § 1182. The answer is yes.”). The court in Lin Guo Xi explained that “[s]eetion 1231(a)(6) ... does not draw any distinction between individuals who are removable on grounds of inadmissibility and those removable on grounds of deportability.” Id. at 835. We also do not believe that the Supreme Court intended to construe § 1231(a)(6) differently for aliens who are removable on grounds of inadmissibility and aliens who are removable on grounds of deportability. The government focuses on the Zadvydas Court’s statement at the outset of its opinion that “[w]e deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question.” Zadvydas, 533 U.S. at 682, 121 S.Ct. 2491. In addition, the government looks to the portion of Zadvydas in which the Court distinguished its decision in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953). See Zadvydas, 533 U.S. at 693-95, 121 S.Ct. 2491. The Court stated that “[although Mezei, like the present cases, involves indefinite detention, it differs from the present cases in a critical respect.... [Mezei’s] presence on Ellis Island did not count as entry into the United States.” Id. at 693, 121 S.Ct. 2491. The Court then further explained: The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.... It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders .... [0]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. Id. According to the government, “[i]t is unreasonable to assume the Zadvydas Court went to such great lengths to distinguish the Government’s authority to detain inadmissible aliens from its" }, { "docid": "15710555", "title": "", "text": "234 F.3d 445, 448(9th Cir.2000) (citation omitted). An alien is deemed to be officially restrained if, “after crossing the border without authorization, he is ‘deprived of [his] liberty and prevented from going at large within the United States.’ ” Hernandez-Herrera, 273 F.3d at 1218 (citation omitted). The “official restraint” doctrine is construed broadly by this court. Ruiz-Lopez, 234 F.3d at 448. Thus, “[a]n alien does not have to be in the physical custody of the authorities to be officially restrained.” Hernandez-Herrera, 273 F.3d at 1219. “The restraint may take the form of surveillance, unbeknownst to the alien.” Pacheco-Medina, 212 F.3d at 1164 (quoting Matter of Pierre, 14 I. & N. Dec. 467, 469 (BIA 1973)). Authorities may be “restraining” an alien for a lengthy period of time or a substantial distance. “If a government official has an alien under 'surveillance from the moment he passes the port of entry until the moment of arrest, the alien has not ‘entered’ the United States ... because the alien was under official restraint the whole time.” Ruiz-Lopez, 234 F.3d at 448. The majority’s conclusion derives primarily from two decisions of sister circuits, United States v. Canals-Jimenez, 943 F.2d 1284 (11th Cir.1991), and United States v. Angeles-Mascote, 206 F.3d 529 (5th Cir.2000). In each case, a defendant deboarded an international flight at a United States airport. Both defendants voluntarily proceeded to an immigration officer and attempted to gain entry to the United States, whereupon they were apprehended and ultimately convicted for being “found in” the United States. Canals-Jimenez, 943 F.2d at 1285-86; Angeles-Mascote, 206 F.3d at 530. The Eleventh Circuit held that the “found in” language of § 1326 was inapplicable. Canals-Jimenez, 943 F.2d at 1288. “Section 1326 applies only to situations in which an alien is discovered in the United States after entering the country surreptitiously by bypassing recognized immigration ports of entry....” Id. See also Angeles-Mascote, 206 F.3d at 531 (“Any party who voluntarily approaches an INS station cannot be said to have been found or discovered in the United States.”). However, this language in Canals-Jimenez was later determined to be mere" }, { "docid": "21447454", "title": "", "text": "is considered not to have effected an “entry” into the United States unless he not only “cross[es] the ... border,” but does so “free from official restraint.” United States v. Hernandez-Herrera, 273 F.3d 1213, 1218 (9th Cir.2001). The provenance of the official restraint doctrine— and the future of the doctrine, as evidenced by Lomberar-Valdovinos and this case — should make us rethink the concept of. what it means to enter the United States.' A Courts adopted this peculiar definition of “entry” — freedom from official restraint — because, for many years, immigration law drew a distinction between exclusion and deportation. Excluded aliens were those who were summarily sent home at the border, in contrast to aliens who were afforded the more elaborate process of deportation because they were “already physically in the United States.” Landon v. Plasencia, 459 U.S. 21, 25, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). See Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (“The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.”). The distinction' was a- crucial one. By virtue of their presence in the United States, aliens in deportation proceedings had greater procedural and substantive rights than aliens in exclusion proceedings — an administrative hearing and an appeal, the right to designate the country of deportation; and the right to seek voluntary departure. Landon, 459 U.S. at 26, 103 S.Ct. 321. By contrast, an excludable alien is a determi nation at the, border, “usually ... at the port of entry.”. Landon, 459 U.S. at 25, 103 S.Ct. 321. As the Court explained in Zadvydas, “certain constitutional protections available to persons inside the United States are unavailable to aliens outside our geographic borders. But once ■ an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens.” 533 U.S. at 693, 121 S.Ct. 2491. See generally David A. Martin, Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v." }, { "docid": "23015715", "title": "", "text": "of any statutory or constitutional right,' even when custody is prolonged because no other country is willing to accept the alien.” Gov’t Br. re Rosales at 20 (quoting Mezei, 345 U.S. at 208-10, 215-16, 73 S.Ct. 625) (emphasis added). In Mezei, an excludable alien was denied reentry into the United States at Ellis Island and ordered excluded; because other countries would not take him in, Mezei was detained on Ellis Island. After one year of detention, Mezei filed a habeas petition in a federal district court claiming that his exclusion without a hearing violated his constitutional rights under the Due Process Clause of the Fifth Amendment. Mezei, 345 U.S. at 207, 73 S.Ct. 625. The Supreme Court held that Mezei, as an excludable alien, was not entitled to a hearing: \"Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Id. at 212, 73 S.Ct. 625 (quotation omitted) (emphasis added); see also Kim Ho Ma v. Reno, 208 F.3d 815, 823 (9th Cir.2000), vacated and remanded sub nom. Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (\"In Mezei, the Court relied on the entry fiction ... in holding that an excludable alien is not entitled to procedural due process.”). The Mezei Court then went on to hold that \"we do not think that respondent's continued exclusion deprives him of any statutory or constitutional right.” Id. at 215, 73 S.Ct. 625 (emphasis added). We believe that the Court in Mezei, therefore, did not address indefinite or potentially indefinite detention as a violation of Mezei’s substantive due process rights. Inasmuch as Rosales and Carballo do not challenge their exclusion, we believe that their cases present a different question. We recognize, however, that other circuits have not read Mezei in this way. See, e.g., Carrera-Valdez, 211 F.3d at 1048 (stating that the Mezei Court \"held that an excludable alien may be detained indefinitely when his country of origin will not accept his return”); Kim Ho Ma, 208 F.3d at 823 (\"[T]he Court held that Mezei could be detained" } ]